Housing Advocates, Inc. v. Berardi and Partners, Inc. Case Number: 1:10-cv-0079

Order Denying Summmary Judgment

by Edward Kramer

Attached is a copy of a decision just issued by our US District Court for ND of Ohio Judge Gwin in a FHAA case filed by THE HOUSING ADVOCATES, INC . John Picard is our expert architect who has done two excellent reports. Ryan DeYoung a new attorney with HAI and I worked on the opposition to the three Motions for Summary Judgment regarding this matter.The court rejects Garcia v Brockway, adopts St Andrews and expands it to rental situations. Finding that the 2 year S/L runs when last apartment was rented RATHER THAN WHEN THE CERTIFICATE OF OCCUPANCY WAS ISSUED. The court explained:

This Court finds, rather, that the facts of the instant case warrant application of the St.

Andrews rationale. Though St. Andrews limited its holding to the facts of that case, this Court finds

the facts of and reasoning in St. Andrews, though not binding, to be particularly instructive. Here,

as there, the Plaintiff organization brings its claims against the Defendants for their roles in the

design and construction of noncompliant dwellings. Through testing and inspection, Plaintiff

Housing Advocates similarly located alleged fair housing violations both in individual units and in

common spaces. Though the St. Andrews plaintiff brought its discriminatory policy and practice

claims against three housing developments, each of those developments contained several

noncompliant dwelling units, as the Plaintiff alleges does Emerald Village.

Moreover, Plaintiff Housing Advocates brings its claims in part under 42 U.S.C. § 3604(f),

which targets the sale or rental of noncompliant housing. Sections 3604(f)(1) and (f)(2) further

delineate causes of action available under § 3604, specifying that it shall be unlawful “[t]o

discriminate in the sale or rental” of a dwelling against any buyer or renter because of handicap, 42

U.S.C. § 3604(f)(1), and “[t]o discriminate against any person in the terms, conditions, or privileges

of sale or rental of a dwelling” because of handicap, 42 U.S.C. § 3604(f)(2). Section 3604(f)(3) then

defines discrimination “for the purposes of this subsection,” to include a failure to design and

construct multi-family dwellings to permit handicap accessibility for first occupancy. 42 U.S.C. §

3604(f)(3). These provisions thus link the design and construction of noncompliant multi-family

dwellings, such as Emerald Village, to a cause of action under the Act stemming from the sale or

rental of such dwellings.

As with noncompliant units up for sale, noncompliant units for rent may remain un-let until

after the statute of limitations has run. Running the limitations period from the date the last

certificate of occupancy issued would thus allow developers to escape liability whenever

noncompliant units are first rented anytime after the limitations period had expired. To permit such

result would challenge the access to courts and private enforcement goals that Congress sought to

facilitate through the Fair Housing Act, thereby ignoring the principle that courts should effect the

“broad remedial intent of Congress embodied in the Act.” Havens, 455 U.S. at 380-81; see also

Brockway, 503 F.3d at 1101-02 (Fisher, J., dissenting).

Finally, because § 3604(f)(3) defines discrimination as extending only to first occupancy,

tolling the statute of limitations until the sale or initial rental of the final unit prevents the limitations

period from being re-triggered each time a previously-rented unit is vacated and then re-let.

Applying the continuing violations doctrine in this fashion, therefore, avoids permitting an enduring

threat of litigation that the Defendants fear would render the statute of limitations meaningless. [Doc.

29-1 at 12.]

The Plaintiff alleges that the Defendants engaged in the practice of designing and building

noncompliant units throughout the multi-family Emerald Village housing complex, units which were

then made available to rent. See Fair Housing Council v. Village of Olde St. Andrews, 250 F. Supp.

2d 706 (W.D. Ky. 2003) (finding challenge to the design and construction of multi-family housing

for sale or rental to be a challenge to an unlawful fair housing practice), aff’d in relevant part, 2006

WL 3724128, *470. Under the facts of the instant case, the continuing violations doctrine tolls the

Fair Housing Act’s statute of limitations until the initial rental of the final unit in Emerald Village.

Regarding standing under Ohio law the Court held that:

The Defendants say, however, that Ohio Fair Housing Law does not similarly permit

organizational standing because it provides no such definition of “aggrieved person.” The

Defendants point to the Ohio Court of Appeals opinion in Fair Housing Advocates v. Chance, No.

07CA0016, 2008 WL 2229530, at *1 (Ohio Ct. App. June 2, 2008), to argue that advocacy groups

such as Housing Advocates do not qualify as “aggrieved persons” under Ohio fair housing laws and

that divesting or committing resources to combat fair housing violations does not, under Ohio law,

constitute an “injury in fact.” [Doc. 27 at 15-16; Doc. 29-1 at 18.]

In Chance, the court of appeals found that the Ohio Fair Housing Law limits civil

enforcement of fair housing practices to “aggrieved persons” but that the law failed to define

“aggrieved persons.” Because the Ohio legislature could have defined this term or adopted the broad

federal definition of “aggrieved person,” but did not, the Chance court determined that the plaintiff

fair housing organization could not demonstrate standing under the law. Chance, 2008 WL

2229530, at *3. The court also noted that federal fair housing laws explicitly provide for

enforcement by “private fair housing enforcement organizations” where the Ohio Fair Housing Law

did not. The court suggested that had Ohio law defined “aggrieved persons” as broadly as federal

law, to include any “person” (further defined to include organizations) claiming injury by a

discriminatory housing practice, an organizational plaintiff might have had standing. Id. The

Defendants therefore correctly argue that under the Chance holding alone, plaintiff groups such as

Housing Advocates do not qualify as aggrieved persons and thus lack standing under the Ohio Fair

Housing Law.

Yet the Defendants do not discuss the current language of the Ohio Fair Housing Law, which

Division (H) of section 4112.02 of the Ohio Revised Code 1/ defines “unlawful discriminatory practices” to include, in part, a “[failure] to design and construct covered multifamily dwellings for first occupancy on or after June 30, 1992" in accordance with certain delineated fair housing conditions. O.R.C. § 4112.02(H)(22). The Plaintiff brings its Ohio fair housing claims pursuant to this division.

Ohio House Bill 1 amended in 2009 to include a definition of “aggrieved persons.” The law now

defines “aggrieved persons” to include: “(a) Any person who claims to have been injured by any

unlawful discriminatory practice described in division (H) of section 4112.02 of the Revised Code;

[or] (b) Any person who believes that the person will be injured by, any unlawful discriminatory

practice described in division (H) of section 4112.02 of the Revised Code that is about to occur.”1/

O.R.C. § 4112.01(A)(23). The law additionally defines “person” to include organizations, O.R.C.

§ 4112.01(A)(1), and provides that aggrieved persons, so-defined, may enforce § 4112.02(H) by

filing a civil action. O.R.C. § 4112.051(A)(1) .

Because this statutory language, as amended, defines “aggrieved persons” almost identically

to the Fair Housing Act, the concerns expressed by the Chance court can no longer preclude

organizational standing under Ohio fair housing laws. Ohio law now broadly defines “aggrieved

persons,” includes organizations in this definition, and permits such aggrieved persons to enforce

provisions of the Fair Housing Law through private civil action—just as does the federal Fair

Housing Act.

We are going to trial on January 18th in this case. I'LL KEEP YOU UPDATED.

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Reference Info: Decision | Federal, 6th Circuit, Ohio | United States

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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