In The Housing Advocates, Inc. v. Berardi + Partners, Inc., et al., Slip Copy, 2010 WL 4905547 (N.D.Ohio 2010), Judge Gwin of the United States District Court for the Northern District of Ohio rejected arguments that The Housing Advocates, Inc. ("HAI") lacked standing to sue parties involved in the design and construction of rental housing that fails to comply with the handicap accessibility requirements of 42 U.S.C. Section 3604(f), and that civil suits alleging such violations must be brought within two years of the last Certificate of Occupancy for the subject premises.
Following, is a summary of the opinion by Isabel Torres-Davis with HUD.
HOUSING ADVOCATES, INC. (Plaintiff) v. BERARDI & PARTNERS, INC. et al.
On Motions for Summary Judgment before the U.S. District Court for the Northern District of Ohio
Decided: November 29, 2010
Plaintiff, a private fair housing organization, filed suit after discovering design and construction violations under the Fair Housing Act (FHA) and Ohio Fair Housing Law (Ohio law). All Defendants filed motions for summary judgment, arguing that (a) Plaintiff lacked standing to bring claims under the Ohio law, and (b) Plaintiff failed to timely file its claim under the FHA and Ohio law. The court denied both motions for the following reasons:
On the issue of standing, Defendants' supported their motions with Fair Housing Advocates v. Chance, which held that private organizations were not "aggrieved persons" under Ohio law. 2008 WL 2229530, at *1 (Ohio Ct. App. June 2, 2008). The court denied Defendants' motion, finding that Defendants could not rely on Chance because 2009 amendments to Ohio law, which included a definition of "aggrieved persons," and defines "persons" to include organizations, overruled Chance. Private fair housing organizations may now enforce the Ohio law through direct private civil action.
On the statute of limitations (SOL) issue, Defendants argued that because Plaintiff filed its complaint in February of 2010, more than two years from the date that the development was completed, Plaintiff's claims were time-barred under the FHA and the Ohio law. Plaintiff countered that the development was not completed until February 2008, and that, in any case, the court should apply the continuing violations doctrine so that the SOL is tolled until the violation is remedied. The court rejected both parties' arguments, and relied instead on Fair Housing Council v. Village of Olde St. Andrews, which applied the continuing violations doctrine to design and construction violations, but only until the initial rental of the final unit in the development; when the final unit in the development is rented for first occupancy, the SOL for filing a design and construction claim is closed. 250 F. Supp.2d 706 (W.D. Ky. 2003).
Held: Defendants’ motions for Summary Judgment denied.
Besides the Attorneys and Law Clerks at HAI who made this victory possible, Diane Citrino and a number of attorneys with the Ohio Attorney General Office, including Marilyn Tobocman, Patrick Dull, and David Oppenheimer, also deserve a great deal of credit for paving the road to this legal victory. As does Attorney Stephen Dane with Relman, Dane & Colfax, PLLC (http://www.relmanlaw.com/), for his successful work on the Olde St. Andrews case on which Judge Gwin expanded in this case.