New Orleans Fair Hous. Ctr. v. St. Bernard Parish, Civil Action No. 06-7185.

• Decision Date: 17 August 2009
• Docket Number: Civil Action No. 06-7185.
• Citation: 648 F.Supp.2d 805
• Parties: GREATER NEW ORLEANS FAIR HOUSING ACTION CENTER, et al. v. ST. BERNARD PARISH, et al.
• Court: U.S. District Court — Eastern District of Louisiana

648 F.Supp.2d 805

GREATER NEW ORLEANS FAIR HOUSING ACTION CENTER, et al. v. ST. BERNARD PARISH, et al.

Civil Action No. 06-7185.

United States District Court, E.D. Louisiana.

August 17, 2009.

M. Lucia Blacksher, New Orleans, LA, John P. Relman, Katherine A. Gillespie, Relman & Dane PLLC, Washington, DC, Jonathan P. Hooks, Joseph D. Rich, Nicole Birch, Lawyers Committee for Civil Rights, Washington, DC, for Greater New Orleans Fair Housing Action Center, et al.

Francis Brian Mulhall, Mulhall Law Firm, Metairie, LA, Alan J. Abadie, Attorney at Law, Chalmette, LA, David Anthony Paysse, St. Bernard Parish Government, Legal Counsel, Chalmette, LA, J. Warren Gardner, Jr., James Aristide Holmes, Christovich & Kearney, LLP, New Orleans, LA, for St. Bernard Parish, et al.

ORDER AND REASONS

HELEN G. BERRIGAN, District Judge.

Before the Court is plaintiff Greater New Orleans Fair Housing Action Center's ("GNO") and intervenor Provident Realty Advisors, Inc.'s ("Provident") Motion to Enforce Consent Order (Rec. Doc. 241.) Plaintiff and intervenor claim that defendants' recent conduct has wrongly prevented intervenor-plaintiff Provident Realty Advisors from moving forward on construction of four multi-family housing units and violated a previous Consent Order and Court Order in this case. Defendants oppose. (Rec. Doc. 251.) This Court held an evidentiary hearing on August 3, 2009¹, as the facts and conduct alleged in plaintiffs' current motion were sufficiently distinct from the facts previously presented to this Court in a prior evidentiary hearing.² (Rec. Doc. 264, 291, 292.) Based on the evidence and testimony produced by the parties, the memoranda and arguments of counsel, the applicable law and the record in this case, the Court grants plaintiffs' Motion to Enforce the Consent Order for the following reasons.

I. BACKGROUND

For the second time this year, this Court must assess whether defendants' conduct violates a previous Consent Order governing this case. The parties to this matter entered into a Consent Order, which was approved by this Court on February 27, 2008. (Rec. Doc. 114.) The consent order settled plaintiffs' allegations that defendants violated the Fair Housing Act of 1968, 42 U.S.C. § 3601, and 42 U.S.C. §§ 1981-83 in enacting several housing ordinances. The plaintiffs alleged that the ordinances were enacted with the intent and effect of discriminating against minorities and plaintiffs sought in particular a preliminary injunction to stay the operation of the so-called "blood relative ordinance."³ Pursuant to the terms of the injunctive relief section of the Consent Order, St. Bernard Parish was enjoined from

violating the terms of the federal Fair Housing Act, and 42 U.S.C. §§ 1981, 1982, and 1983. Specifically, St. Bernard Parish agrees that it shall not:

A. Refuse to rent a dwelling unit, or otherwise make unavailable or deny a dwelling unit, to any person because of race or national origin;

B. Deny minority citizens the same rights as are enjoyed by white citizens to make and enforce contracts;

C. Deny minority citizens the same rights as are enjoyed by white citizens to lease, hold and otherwise enjoy real property;

D. Deny any person equal protection of the law by discriminating on the basis of race and national origin in the leasing of real property; and, E. Retaliate against Plaintiffs or any other person who alleges that Defendants have violated the Fair Housing Act, 42 U.S.C. § 3601 et seq.

(Rec. Doc. 114 at ¶ 9.) GNO and St. Bernard Parish specifically agreed to the continuing jurisdiction of this Court for a period of three years from February 27, 2008 to resolve disputes regarding interpretation or compliance with the Consent Order. (Id. at 8, ¶ 12.)

On December 18, 2008, GNO and Provident filed a motion to enforce the February 7, 2008 Consent Order. (Rec. Doc. 126.) They claimed that an ordinance passed by the Council in September 2008 violated the consent order entered in this case. The challenged ordinance placed a moratorium on the construction of all multi-family housing (i.e. buildings with more than 5 units) for a period of twelve months or until the Council enacted certain zoning updates. (Rec. Doc. 233.)

In March 2009, this Court heard two days of testimony regarding plaintiffs' challenge to the September 2008 ordinance banning construction of multi-family housing as a violation of the Fair Housing Act, 42 U.S.C. 1983, and the Consent Order previously entered in this matter. (Rec. Doc. 226, 228.) This Court found that the moratorium had a discriminatory intent and effect and therefore constituted a violation of the Consent Order. Greater New Orleans Fair Housing Action Center v. St. Bernard Parish, 641 F.Supp.2d 563 (E.D.La.2009) (Berrigan, J.) Accordingly, this Court ordered the St. Bernard Parish Council to rescind the moratorium. (Id.)

As part of this Court's March 2009 order to rescind the moratorium, this Court made a series of factual findings on the underlying real estate developments at issue. The proposed Provident developments consist of four mixed-income rental apartment complexes with 72 units each. Thirty percent of these units will be rented at fair market rates. Fifty percent will be at 60% of Area Median Income ("AMI"). (Id.) Twenty percent will be at 30% of AMI. The estimated cost of the developments is $60 million dollars. The majority of funding for these complexes was specifically geared towards providing affordable housing, thus the income restrictions and lowered rent on 70% of the units. $20 million of the funding would come from Community Development Block Grant funds, administered by the Louisiana Recovery Development Program. $30 million would be provided in Low Income Housing Tax Credits. The final $10 million required to fund the developments was expected to come from a permanent loan from Freddie Mac.

(641 F.Supp.2d at 566) (internal citations omitted.) The Court adopts and incorporates these findings for the purposes of this opinion.

At issue in the present motion for contempt is whether defendants' conduct since the March 25, 2009 order constitutes a violation of the Consent Order. Plaintiffs allege that the Planning Commission's denial of their application to re-subdivide the relevant plats on April 23, 2009 has the same discriminatory intent and/or effect as the now-rescinded moratorium on construction of multi-family dwellings. (Rec. Doc. 241-2.) Plaintiffs also allege that subsequent actions by both the St. Bernard Parish Council and the Planning Commission injected improper and pretextual concerns into otherwise routine resubdivision requests. (Id.) By improperly denying or delaying Provident's applications, plaintiffs allege that defendants are simply continuing the same course of conduct that this Court found previously violated the Consent Order. Defendants claim that any delay in the re-subdivision process arises from plaintiffs own unpreparedness and incomplete applications.

II. LAW AND ANALYSIS

A. Disparate Racial Impact

Central to determining both discriminatory intent and discriminatory effect is an assessment of whether or not the challenged law has a disparate racial impact. See Overton v. City of Austin, 871 F.2d 529, 540 (5th Cir.1989) (describing standard for discriminatory intent); Simms v. First Gibraltar Bank, 83 F.3d 1546, 1555 (5th Cir.1996) (noting discriminatory effect under the FHA may be proven with evidence of a "significantly greater discriminatory impact.")

This Court previously heard testimony from plaintiffs' and defendants' experts as to whether or not the moratorium had a disparate impact on African-Americans. After reviewing the evidence and the applicable law regarding disparate impact, this Court found that the moratorium then at issue had a disparate impact on African-Americans.

At this hearing, neither party introduced new evidence regarding disparate impact. Plaintiffs submitted the March evidentiary hearing testimony of their expert, Dr. Calvin Bradford, as an exhibit. (Pltf. Ex. 21.) Defendants also did not submit any additional evidence, despite this Court's previous rejection of the methods used by defendant's previous expert, Dr. Wade Ragas. Accordingly, the sole evidence before this Court as to disparate impact is found in the record of the March evidentiary hearing.

Upon review of this Court's March 25, 2009 Order, these findings are sufficient to demonstrate that acts that prevent the realization of Provident's proposed development would also have a racially disparate impact. First, because African-American households are twice as likely as Caucasians to live in rental housing in the greater New Orleans metropolitan area, significantly reducing the number of rental properties available in St. Bernard Parish disproportionately affects African-Americans. 641 F.Supp.2d at 567-68. Second, African-American families are more than three times as likely as Caucasian families to have incomes within the lowest income range served by the affordable housing developments (30% of AMI). Id. In the higher income range (60% of AMI), African-American families are 87% more likely to have incomes within this next highest income range than Caucasian families. Id. Third, testimony at the March evidentiary hearing indicated that based on the developer's experience and current leasing of similar mixed-income units in Louisiana on the Northshore and in Texas, Provident would expect the rental population to be approximately 50% African-American, 25% other minority, and 25% Caucasian. Id. at 4.

Based on the above findings, the Court finds that acts to prevent the proposed Provident developments would have a disparate racial impact on African-Americans.

B. Discriminatory Intent

To assess whether or not discriminatory intent exists, the Fifth Circuit, citing the Supreme Court, has held the following circumstantial evidence factors to be both pertinent and non-exhaustive: "(1) the historical background...