National Fair Housing Alliance, Inc. et al v. Hunt Investments, L.L.C. et al, No. 3:2014cv00716 - Document 89 (E.D. Va. 2015)
Court Description: MEMORANDUM OPINION. Signed by District Judge James R. Spencer on 07/14/2015. (tjoh, )
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National Fair Housing Alliance, Inc. et al v. Hunt Investments, L.L.C. et al Doc. 89 EASTERN DISTRICT OF VIRGINIA RICHMOND DIVISION NATIONAL FAIR HOUSING ALLIANCE, INC., et al., Plaintiffs, Civil Action No. 3:14-CV-716 v. HUNT INVESTMENTS, LLC, et al., Defendants. MEMORAN D U M OPIN ION THIS MATTER is before the Court on a Motion to Dism iss, filed by Defendants Hunt Investm ents, L.L.C., Cedar Street Genesis, LLC and Genesis Hom es Manager, LLC (“Hunt Motion”) (ECF No. 79); a Motion to Dism iss, filed by MGT Construction Managem ent, Inc. (“MGT Motion”) (ECF No. 81); and Defendant Walter Parks, Architect, PLLC Motion to Dism iss Plaintiffs’ Second Am ended Com plaint (“Parks Motion”) (ECF No. 83). The Court dispenses with oral argum ent because the facts and legal contentions are adequately presented in the m aterials before the Court, and oral argum ent would not aid in the decisional process. E.D. Va. Loc. Civ. R. 7(J ). For the reasons set forth below, each of the above-listed Motions is hereby DENIED. I. BACKGROU N D a. Fa ct u a l Ba ck g r o u n d 1 This is a civil rights action brought by Plaintiffs NFHA2 and HOME 3 against the developers, builders, designers, and owners of the m ultifam ily apartm ent com plex “Shockoe 1 The factual background is gathered from Plaintiffs’ Second Amended Com plaint (ECF No. 76). NFHA is a national, nonprofit, public service organization whose m ission includes advocating for the rights of people with disabilities to accessible housing. (Second Am . Com pl. ¶ 12.) 3 HOME is a nonprofit corporation who works to ensure equal access to housing for all persons through counseling, education and advocacy. (Second Am. Com pl. ¶ 13.) 2 1 Dockets.Justia.com Valley View Apartm ents” (also known as “Cedar Street Apartm ents”) 4 located in Richm ond, Virginia, arising from violations of the accessibility requirem ents of the Fair Housing Act, Title VII of the Civil Rights Act of 1968, as am ended by the Fair Housing Am endm ents Act of 1988 (“FHAA”), 42 U.S.C. §§ 360 1-3619.5 Specifically, the Defendants in this case are: Hunt Investm ents, L.L.C. (“Hunt”), Cedar Street Genesis, LLC (“Cedar Street”), Genesis Hom es Manager, LLC (“Genesis Hom es”)– all of whom are allegedly responsible for the design and/ or construction of the project; Walter Parks, Architect, PLLC (“Parks”)– who is the architect responsible for the design of the project; an d MGT Construction Managem ent, Inc. (“MGT”)– who is the general contractor on the project. In J une 20 14, Plaintiffs allege that they becam e aware that the m ultifam ily housing com plex designed and/ or constructed by Defendants did not include the required elem ents of accessible and adaptable design. Plaintiffs therefore sent “testers”6 to Shockoe in J une 20 14. The testers were shown several available units in the covered apartm ent com plex that were available for im m ediate rental and m ove-in. In addition, they observed that several units were already rented and occupied. Plaintiffs’ testers identified m ultiple FHAA design and construction violations in the units they saw and in the com m on areas. 7 In Septem ber 20 14, Plaintiffs sent another tester to Shockoe, who was shown several available units in the covered apartm ent com plex that were available for im m ediate rental and 4 The covered apartm ent com plex consists of 151 dwelling units, arranged in the shape of an L. The building has an elevator to access the second, third, an d fourth floors, but each ground floor unit m ust be accessed through its own individual entrance from out the outside. 5 The FHAA mandates that every m ultifam ily apartm ent building containing four or m ore units and built for first occupancy after March 13, 1991 be subject to certain design and construction requirem ents. All ground floor units m ust com ply with the following requirem ents, as m ust all units in a building served by an elevator: public and com m on use areas that are readily accessible to, and usable by, people with disabilities; doors into and within covered units that are sufficiently wide to allow passage by people in wheelchairs; an accessible route into and through the dwelling; light switches, electrical outlets, therm ostats, and other environm ental controls in accessible locations; reinforcem ents in bathroom walls that allow for the later installation of grab bars; and usable kitchens and bathroom s such that an individual in a wheelchair can m aneuver about the space. See 42 U.S.C. § 360 4(f)(3)(C). 6 “Testers are individuals who, without an intent to rent or purchase a hom e or apartm ent, pose as renters or purchasers for the purpose of collecting evidence” of discrim inatory housing practices. Havens Realty Corp. v. Colem an, 455 U.S. 363, 373 (1982). 7 See Second Am . Com pl. ¶¶ 35– 39. 2 m ove-in. This tester also observed that several units in the covered apartm ent com plex were already rented and occupied. She identified m ultiple FHAA design and construction violations in the units she saw and in the com m on areas. Defendants’ agent attem pted to show the tester the m odel unit, but the tester, who uses a m otorized wheelchair, could not enter the m odel unit because there were steps leading up to the only entrance. The tester observed that several of the units on the ground floor of the covered apartm ent com plex, including units that were occupied, were sim ilarly inaccessible to individuals with disabilities because the only entrance to the unit required an individual to go up steps. Defendants subm itted blueprints for the covered apartm ent com plex to the City of Richm ond Building Departm ent in order to obtain building perm its. These blueprints allegedly dem onstrate that the FHAA design and construction violations identified by the testers in the units they saw are extrem ely likely to be present in all of the units in the covered apartm ent com plex. On Novem ber 25, 20 14, an accessibility consultant hired by Defendants conducted an accessibility inspection at the covered apartm ent com plex. The consultant confirm ed that the dwelling units contained violations of the Fair Housing Act Accessibility Guidelines (“FHAAG”) 8 , identified by Plaintiffs, including a failure to provide accessible visitor parking, exterior doors to balconies with excessively high thresholds, and insufficient centered clear floor space at the range in the kitchen. The consultant also found additional violations of the FHAAG, including a failure to provide appropriate signage, excessive slopes in resident accessible parking spaces, excessive slopes throughout the property, an excessively high drop box for tenants to subm it rent checks, and a failure to provide an accessible route to the com m unity garbage dum pster. 8 The FHAAG was published by the United States Departm ent of Housing and Urban Developm ent (“HUD”) on March 6, 1991. The guidelines incorporate the requirem ents of the Am erican National Standards Institute for buildings and facilities providing accessibility and usability for physically handicapped people. (Second Am . Com pl. ¶ 21.) 3 As of May 8, 20 15, all of the units in the covered apartm ent com plex are either being rented to m em bers of the public or are available to the public to rent im m ediately. The City of Richm ond has issued tem porary and partial certificates of occupancy9 perm itting residence throughout the covered apartm ent com plex. The only portions of the building that are still under construction are the public areas associated with the clubhouse, a structure that is entirely separate from the building containing the 151 dwelling units and is not included in the claim s presented here. The “certificate of occupancy” for the entire building cannot and will not be granted until the public areas associated with the clubhouse are com plete. b . Pr o ce d u r a l Ba ck g r o u n d Plaintiffs filed their Com plaint in this Court on October 21, 20 14, requesting declaratory and injunctive relief as well as dam ages and attorneys’ fees. Defendants subsequently filed Motions to Dism iss. (See ECF No. 6, 9, 12). Those Motions to Dism iss were denied as m oot after Plaintiffs filed their Am ended Com plaint. (See ECF No. 43.) Defendants subsequently filed m otions to dism iss the Am ended Com plaint on Decem ber 10 , 20 14, (ECF Nos. 30 , 32, 34), pursuant to Federal Rule of Civil Procedure 12(b)(1). After oral argum ent on April 7, 20 15, the Court granted each of the Motions to Dism iss, finding that the claim s were not ripe for adjudication. (See ECF Nos. 60 , 61.) Plaintiffs then filed a Motion for Reconsideration on May 8, 20 15. (ECF No. 63.) The Court granted the Motion for reconsideration on J une 2, 20 15, (ECF Nos. 74, 75) and accordingly vacated its previous Order granting Defendants’ Motions to Dism iss. On J une 2, 20 15, Plaintiffs filed their Second Am ended Com plaint. (ECF No. 76). 9 Under the Construction Code applicable in the City of Richm ond, there is no “final” certificate of occupancy. Rather, there is a “certificate of occupancy” that [i]ndicat[es] com pletion of the work for which a permit was issued shall be obtained prior to the occupancy of any building or structure . . . . The certificate shall be issued after com pletion of the final inspection and when the building or structure is in com pliance with this code and any pertinent laws or ordinances . . . 20 12 Va. Constr. Code § 116.1 (effective J uly 14, 20 14). A “tem porary certificate of occupancy,” on the other hand, “m ay be issued before the com pletion of the work covered by a permit, provided that such portion or portions of a building or structure m ay be occupied safely proper to full com pletion of the building or structure without endangering life or public safety.” Id. 4 Defendants then filed the present m otions to dism iss the Second Am ended Com plaint pursuant to Rule 12(b)(1). II. LEGAL STAN D ARD Federal Rule of Civil Procedure 12(b)(1) allows a defendant to m ove for dism issal of a claim when the court lacks subject m atter jurisdiction over the action. The Court m ust dism iss the action if it determ ines at any tim e that it lacks subject-m atter jurisdiction. Fed. R. Civ. P. 12(h)(3). Under Rule 12(b)(1), the plaintiff bears the burden of proving that jurisdiction exists in federal court. Richm ond, Fredericksburg & Potom ac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). The district court m ust then weigh the evidence to determ ine whether jurisdiction is proper. Adam s v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). In its determ ination, a court should grant a Rule 12(b)(1) m otion to dism iss if the m aterial jurisdictional facts are known and the m oving party is entitled to prevail as a m atter of law. Richm ond, Fredericksburg & Potom ac R.R. Co., 945 F.2d at 768. III. D ISCU SSION As they argued in their original m otions to dism iss, Defendants again assert that Plaintiffs’ claim s are not ripe for adjudication because construction of the covered apartm ent com plex is not yet com plete. They continue to argue that until the com plex is in its final form , any claim that it will not com ply with the FHA necessarily depends upon future uncertainties. (See MGT Mem . in Supp. of Mot. at 4.) Defendant Parks expressly recognizes that the Court has previously addressed and resolved this identical issue. (Parks Mot. at 1 n.1.) As this Court held in its Order granting Plaintiffs’ Motion for Reconsideration, the Court again finds that Plaintiffs’ claim s are ripe for adjudication. “The ‘ripeness’ requirem ent originates in the ‘case or controversy’ constraint of Article III, and presents a ‘threshold question [] of justiciability.” Scoggins v. Lee’s Crossing Hom eow ners Ass’n, 718 F.3d 262, 269 (4th Cir. 20 13) (quoting Lansdow ne on the Potom ac Hom eow ners Ass’n, Inc. v. OpenBand at Lansdow ne, LLC, 713 F.3d 187, 195 (4th Cir. 20 13)). 5 The doctrine is intended to prevent courts “from becom ing entangled in ‘abstract disagreem ents’” by requiring “courts to avoid taking prem ature judicial action.” Id. at 270 . “A claim is not ripe for adjudication if it rests upon contingent future events that m ay not occur as anticipated, or indeed m ay not occur at all.” Texas v. United States, 523 U.S. 296, 30 0 (1998). In determ ining ripeness, the Court m ust consider both “the fitness of the issues before the court, as well as the hardship that the parties will experience if the court withholds consideration of the dispute.” Scoggins, 718 F.3d at 270 (citations om itted). In the present m otions, Defendants attem pt to argue that Plaintiffs’ claim s are unfit for judicial decision because construction of the Cedar Street Apartm ents it not yet com plete. Relying on Garcia v. Brockw ay , 526 F.3d 456 (9th Cir. 20 0 8), Defendants claim that in an FHA design and construct case, claim s do not becom e ripe until construction is com plete and the final certificate of occupancy is issued. However, this Court previously rejected this exact argum ent in its m em orandum opinion granting Plaintiffs’ m otion for reconsideration: Garcia found that “[t]he statute of lim itations is . . . triggered at the conclusion of the design-and-construction phase, which occurs on the date the last certificate of occupancy is issued.” Garcia, 526 F.3d at 461. The Court further held that the “failure to design and construct” is “a discrete instance of discrim ination that term inates at the conclusion of the design-andconstruction phase.” Id. at 462 (em phasis added). Thus, as Plaintiffs contend, Garcia does not discuss when the discrim inatory act in a design-andconstruct claim can first be challenged, but rather only discusses when such claim s term inate for purposes of the statute of lim itations. (Mem . Op., J une 2, 20 15, ECF No. 74, at 6.) Furtherm ore, the plain language of the statute as well as the Housing and Urban Developm ent (“HUD”) regulations confirm s that Plaintiffs’ claim s are in fact ripe. See Moseke v. Miller and Sm ith, Inc., 20 2 F. Supp. 2d 492, 50 2 (E.D. Va. 20 0 2) (citations om itted) (“The initial step in statutory construction is to consider the plain m eaning of the statutory term s them selves.”). A “discrim inatory housing practice” under the FHAA “m eans an act that is unlawful under section 360 4 . . . of this title.” 42 U.S.C. § 360 2(f). Section 360 4 of the FHAA m akes it unlawful to discrim inate in the sale or rental, or to otherwise m ake unavailable or deny, 6 a dwelling to any buyer or renter because of a handicap. 42 U.S.C. § 360 4(f)(1). Specifically, in connection with “covered m ultifam ily dwellings,” discrim ination includes . . . a failure to design and construct those dwellings in such a m anner that– (i) the public use and com m on use portions of such dwellings are readily accessible to and usable by handicapped persons; (ii) all the doors designed to allow passage into and within all prem ises within such dwellings are sufficiently wide to allow passage by handicapped persons in wheelchairs; and (iii) all prem ises within such dwellings contain the following features of adaptive design: (I) an accessible route into and through the dwelling; (II) light switches, electrical outlets, therm ostats, and other environm ental controls in accessible locations; (III) reinforcem ents in bathroom walls to allow later installation of grab bars; and (IV) usable kitchens and bathroom s such that an individual in a wheelchair can m aneuver about the space. 42 U.S.C. § 360 4(f)(3)(C)(i)– (iii). A covered “m ultifam ily dwelling” m eans “buildings consisting of 4 or more units if such buildings have one or m ore elevators; and ground floor units in other buildings consisting of 4 or m ore units.” 42 U.S.C. § 360 4(f)(7)(A)– (B); 24 C.F.R. § 10 0 .20 1 (em phasis added) (defining “covered m ultifam ily dwellings as “buildings consisting of 4 or m ore dw elling units if such buildings have one or m ore elevators; and ground floor dw elling units in other buildings consisting of 4 or m ore dwelling units”).10 Moreover, dwelling is defined as “any building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or m ore fam ilies . . . .” 42 U.S.C. § 360 2(b) (em phasis added). The HUD regulations also specifically define a “dwelling unit” as a “single unit of residence for a fam ily or one or m ore persons . . . includ[ing] an apartm ent unit within an apartm ent building.” 24 C.F.R. § 10 0 .20 1 (em phasis added). Here, Plaintiffs’ Second Am ended Com plaint alleges that “[t]he dwelling units are fully constructed and have been and are currently being rented to the public.” (Second Am . Com pl. ¶¶ 10 The Shockoe Valley Apartm ents are “m ultifam ily dwellings” as that term is defined in the FHA. (See Second Am. Com pl. ¶ 3.) 7 5, 29.) Further, “[t]he City of Richm ond has issued tem porary and partial certificates of occupancy perm itting residence throughout the covered apartm ent com plex.” (Id. at ¶ 29.) Plaintiffs state that a “final” certificate of occupancy will not be issued until the clubhouse is com plete constructed; however, Plaintiffs’ claim s are not related to that structure. (Id. at ¶¶ 32, 33.) Despite already being occupied by renters, these dwelling units contain m ultiple FHAA violations. (See id. at ¶¶ 35– 39.) Accepting these allegations as true, Plaintiffs’ claim s are fit for adjudication. Defendants have failed to “design and construct” this covered m ultifam ily dwellin g in com pliance with 42 U.S.C. § 360 4(f)(3)(C). As to the hardship prong of the ripeness inquiry, the Court m ust consider “the im m ediacy of the threat and the burden im posed on the petitioner who would be com pelled to act under threat of enforcem ent of the challenged law.” Charter Fed. Sav. Bank v. Office of Thrift Supervision, 976 F.2d 20 3, 20 8 (4th Cir. 1992). First, Defendants’ conduct has already im posed a hardship to persons with disabilities. For exam ple, Plaintiffs’ tester who uses a m otorized wheelchair was unable to “enter the m odel unit because there were steps leading up to the only entrance.” (Second. Am . Com pl. ¶ 25.) Because these apartm ent units “are either being rented to m em bers of the public or are available to the public to rent im m ediately,” (id. at ¶ 29), there is an im m ediate threat. Secondly, the burden on Defendants to correct these FHAA violations is m inim al, although they attem pt to argue that it would be “patently unfair to im pose FHA liability on a contractor for a partially-com plete construction project, as plans routinely change during the course of a project,” (MGT Mem . in Supp. of Mot. at 8), and it would subject “developers to lim itless lawsuits,” (Parks Mem . in Supp. of Mot. at 7). Defendants’ argum ents are contradicted by the legislative history, which illustrates that the costs of future rem ediation will only increase for Defendants. At the Congressional hearings, it was specifically noted “that it is cheaper to m ake housing available and accessible to the handicapped when it is being constructed, rather than m aking m odifications later on.” 134 Cong. Rec. S10 532-0 4 (Aug. 2, 1988) (statem ent of 8 Sen. Kennedy). Thus, Congress wanted builders to address accessibility requirem ents before construction was com plete in an effort to thwart costs. Following Congress’ intent, the burden on Defendants at this stage of construction is m inim al com pared to what it could be at com pletion of the apartm ent com plex. IV. CON CLU SION For the foregoing reasons, the Hunt Motion , MGT Motion, and Parks Motion are hereby DENIED. Let the Clerk send a copy of this Mem orandum Opinion to all counsel of record. An appropriate Order shall issue. ENTERED this 14th _____________________/s/_________________ James R. Spencer Senior U. S. District Judge day of J uly 20 15. 9
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