Asylum Hill Problem Solving Revit. v. King

• Decision Date: 21 February 2006
• Docket Number: No. 17313.,17313.
• Citation: 890 A.2d 522,277 Conn. 238
• Court: Connecticut Supreme Court
• Parties: ASYLUM HILL PROBLEM SOLVING REVITALIZATION ASSOCIATION et al. v. Gary E. KING.

890 A.2d 522

277 Conn. 238

ASYLUM HILL PROBLEM SOLVING REVITALIZATION ASSOCIATION et al. v. Gary E. KING.

No. 17313.

Supreme Court of Connecticut.

Argued October 24, 2005.

Decided February 21, 2006.

Sarah W. Poston, with whom were Jonathan B. Orleans, Bridgeport, and, on the brief, Annette M. Lamoreaux, New York City, for the appellants (plaintiffs).

Sheila A. Huddleston, Hartford, with whom were Derek L. Mogck and, on the brief, Joseph P. Williams, for the appellee (defendant).

Shelley A. White, Greg Bass, Anne Louise Blanchard, Susan Ann Silverstein, pro hac vice, Michael Schuster, pro hac vice, Thomas Behrendt, Raphael Podolsky and Erin Kemple filed a brief for the American Association of Retired Persons et al. as amici curiae.

BORDEN, NORCOTT, KATZ, VERTEFEUILLE and ZARELLA, Js.

KATZ, J.

The plaintiffs, the Asylum Hill Problem Solving Revitalization Association (revitalization association) and Adrienne Brown, appeal from the judgment of the trial court rendered in favor of the defendant, Gary E. King, the president and executive director of the Connecticut Housing Finance Authority (finance authority), following the trial court's decision to strike all three counts of the plaintiffs' complaint. Generally stated, the issue in this appeal is whether the plaintiffs can bring a cause of action to compel the finance authority to take affirmative steps to prevent racial segregation and high concentrations of poverty that allegedly have resulted from its administration of a federal low income housing tax credit program (tax credit program). More specifically, the plaintiffs claim that the following state and federal fair housing laws confer a private right of action affording equitable relief: (1) General Statutes § 8-37cc (b);¹ and (2) pursuant to 42 U.S.C. § 1983,² 42 U.S.C. § 3608(d) of the federal Fair Housing Act³ and 26 C.F.R. § 1.42-9, the federal regulation authorizing a low income tax housing credit.⁴ We conclude that these provisions do not create a private right of action and, accordingly, we affirm the judgment of the trial court.

The record discloses the following undisputed facts and procedural history. Brown is a low income African-American resident of the Asylum Hill neighborhood in Hartford, and the revitalization association is an incorporated entity representing the interests of residents and institutions concerned with the quality of life and the future of that neighborhood. The finance authority is a political subdivision of the state, established for the purpose of alleviating the shortage of housing for low and moderate income families and persons. General Statutes §§ 8-244 and 8-250. One of the programs that the finance authority is responsible for administering within this state is a federal tax credit program that provides development funds to both for-profit and non-profit housing developers through the sale of tax credits.

In August, 2001, the finance authority approved a reservation of tax credits for two buildings in the Asylum Hill neighborhood to provide low-income housing. This grant was in addition to a tax credit the authority previously had granted for another rental development located nearby in the same neighborhood. Together, the projects will result in a substantial additional concentration of low income families in the Asylum Hill area, where 47.3 percent of the current residents are at or below the federal poverty level and where fewer than 5 percent of the students enrolled in the elementary school are white and 72 percent are in the free and reduced lunch program. Shortly after the August, 2001 approval of the tax credits, the revitalization association and individual residents of the Asylum Hill neighborhood filed a request with the defendant for a declaratory ruling pursuant to General Statutes § 4-176. In essence, the plaintiffs sought a ruling requiring the finance authority to revise its practices and procedures for funding applications under the federal tax credit program so as to minimize racial and economic segregation.⁵

After the finance authority did not respond to that request within six months, the plaintiffs filed this action, in three counts, alleging: (1) a violation of § 8-37cc (b); (2) a violation of 42 U.S.C. § 3608(d) of the federal Fair Housing Act; and (3) violations of 42 U.S.C. § 3608(d) and 26 C.F.R. § 1.42-9 enforceable through 42 U.S.C. § 1983. They sought declaratory and injunctive relief requiring the finance authority to adopt appropriate statewide standards and site review in order to limit economic and racial segregation and, until such standards are in place, an order barring the authority from locating in the Asylum Hill neighborhood, or in any other racially or economically isolated neighborhoods, new housing developments that utilize the tax credit program. The plaintiffs alleged that, contrary to its statutory obligations, the finance authority had failed to: (1) collect and analyze data regarding relevant racial composition; and (2) adopt rules restricting the placement of low income housing developments in racially concentrated, high poverty areas. The plaintiffs further alleged that the finance authority had adopted policies and practices that have had adverse effects, including increased overcrowding and segregation in neighborhood schools, decreased access to employment among community residents, decreased home ownership rates and neighborhood stability, and diminished access to government services and assistance as a result of strains on state and municipal services. The plaintiffs alleged that they had suffered direct harm from the finance authority's practices, including interference with the revitalization association's efforts to plan for the neighborhood and the loss of benefits associated with living in a more racially and economically integrated community.

The defendant moved to dismiss the plaintiffs' action on the ground that they lacked standing to sue under the statutory and regulatory provisions on which their claims were based. Upon conditional agreement by the parties, the trial court treated the defendant's motion as a motion to strike and granted the motion, striking all three counts of the plaintiffs' amended complaint.⁶ With respect to the plaintiffs' claim under state law, the trial court applied the three-prong test established by this court in Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 250, 680 A.2d 127 (1996), cert. denied, 520 U.S. 1103, 117 S.Ct. 1106, 137 L.Ed.2d 308 (1997), and held that § 8-37cc (b) does not create an implied private cause of action because: (1) the plaintiffs are not part of the class intended to benefit from the enactment; (2) the legislative history does not indicate an intent to create a private right of action; and (3) providing a private cause of action is not consistent with the underlying purposes of the legislative scheme. The trial court also addressed the plaintiffs' claims under federal law, concluding that an implied right of action does not arise directly from § 3608(d) under the standard set forth by the United States Supreme Court in Gonzaga University v. Doe, 536 U.S. 273, 283, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002). Specifically, the trial court held that neither the statutory language, nor the statutory scheme, supported an implication that such a right of action exists.⁷ Applying the Gonzaga University reasoning, the trial court also held that the plaintiffs could not bring an action pursuant to 42 U.S.C. § 1983 to assert violations of § 3608(d) and 26 C.F.R. § 1.42-9(a), the tax regulation related to that section, because the language in § 3608(d) was not phrased in terms of persons benefited and, therefore, did not reflect a legislative intent to confer rights upon the plaintiffs. Accordingly, the trial court granted the motion to strike all three counts of the plaintiffs' complaint and rendered judgment for the defendant. This appeal followed.⁸

The plaintiffs make three claims: (1) applying a proper Napoletano analysis, there is an implied private right of action under § 8-37cc (b); (2) applying the proper standard under federal case law § 3608(d) is enforceable under § 1983; and (3) 26 C.F.R. § 1.42-9(a) similarly is enforceable under § 1983. The defendant responds that the trial court applied the appropriate standards in its analysis of both state and federal law and, therefore, there is no private right of action available to the plaintiffs.

Before addressing the merits of the plaintiffs' claims, we set out the well established standard of review in an appeal challenging the grant of a motion to strike. "Because a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review of the court's ruling on the [defendant's motion] is plenary.... [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.... Moreover, we note that [w]hat is necessarily implied [in an allegation] need not be expressly alleged.... It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.... Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Citations omitted; internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001).

I

The first issue we decide is whether § 8-37cc (b) confers a private right of action affording equitable relief. Section 8-37cc (b) provides: "Each housing agency shall affirmatively promote fair housing choice and racial and economic integration in all programs administered or supervised by such housing agency." Because there is no dispute that the statute does not expressly authorize a right of action, the issue is whether there is an implied right of...