Freedom's Path At Dayton v. Dayton Metro. Hous. Auth.

• Decision Date: 05 January 2021
• Docket Number: Case No. 3:16-cv-466
• Parties: Freedom's Path at Dayton, Plaintiff, v. Dayton Metropolitan Housing Authority, Defendant.
• Court: U.S. District Court — Southern District of Ohio

Freedom's Path at Dayton, Plaintiff, v. Dayton Metropolitan Housing Authority, Defendant.

Case No. 3:16-cv-466

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT DAYTON

January 5, 2021

Judge Thomas M. Rose

DECISION AND ENTRY RECONSIDERING DAYTON METROPOLITAN HOUSING AUTHORITY'S MOTION FOR SUMMARY JUDGMENT. ECF 40. THE COURT'S MARCH 25, 2019 ORDER, ECF 65, IS VACATED IN PART. THE COURT'S PREVIOUS ORDER, ECF 65, IS VACATED AS TO "REASONABLE ACCOMMODATION," THE REMAINDER OF ECF 65 IS AFFIRMED. DAYTON METROPOLITAN HOUSING AUTHORITY'S MOTION FOR SUMMARY JUDGMENT, ECF 40, IS GRANTED IN FULL. PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT, ECF 41, IS DENIED. JUDGMENT IS AWARDED TO DEFENDANT DAYTON METROPOLITAN HOUSING AUTHORITY AND AGAINST PLAINTIFF FREEDOM'S PATH AT DAYTON. THE INSTANT CASE IS TERMINATED. THE PARTIES' MOTIONS IN LIMINE, ECF 84, 86 & 106, ARE MOOT.

Subsequent to the recusal of the presiding judge, the instant case was reassigned. Acquainting itself with the case, the Court has reviewed the orders previously issued. Strulson v. Chegg, Inc., No. 3:15-CV-00828, 2017 WL 6003085, at *3 (W.D. Ky. Dec. 4, 2017) ("As Rule 54(b) explains, the Court may reconsider its position "at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.") See also Leelanau Wine Cellars, 118 Fed. App'x 942, 946 (6th Cir. 2004). In light of that review, Motion for Summary Judgment by Defendant Dayton Metropolitan Housing Authority, ECF 40, will be granted in full.

Background

Plaintiff, Dayton Veterans Residences Limited Partnership d/b/a Freedom's Path at Dayton ("Freedom's Path") filed suit against Dayton Metropolitan Housing Authority d/b/a Greater Dayton Premier Management ("Greater Dayton Premier Management" or "GDPM"), alleging violations of Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132, and the Fair Housing Act of 1968 ("FHA"), 42 U.S.C. § 3604. Freedom's Path maintains that Greater Dayton Premier Management arbitrarily, capriciously and discriminatorily blocked funding for, and financing of, 60 units of project-based affordable housing for homeless veterans, most of whom are disabled. Prior orders in this case ably describe the evidentiarily supported allegations in this case:

Plaintiff, Freedom's Path, is a limited partnership formed for the sole purpose of developing and owning 60 units of affordable housing for homeless veterans on the Veteran's Administration's Medical Campus ("VAMC") in Dayton, Ohio. Craig Taylor, a consultant working with Don Paxton of Communities for Veterans ("CFV"), a real estate development company, headed up the Freedom's Path project.

On December 30, 2011, the Veteran's Administration awarded Freedom's Path a 5-year Enhanced Use Lease ("EUL") for 14 acres of land on the VAMC. ECF 43-16, PageID 1742-55. At his deposition, Taylor explained that, to complete the housing project, Freedom's Path then needed to obtain: (1) low income housing tax credits ("LIHTCs") from the Ohio Housing Finance Authority ("OHFA"); and (2) project-based rental assistance from the United States Department of Housing and Urban Development ("HUD"). ECF 31-1, PageID 520.

To accomplish these tasks, Freedom's Path needed the assistance of Defendant Greater Dayton Premier Management, thefederal public housing authority ("PHA") serving the Dayton area. Greater Dayton Premier Management administers several HUD programs, including housing assistance through Sections 8 and 9 of the Housing Act of 1937. Greater Dayton Premier Management also administers HUD's Veterans Affairs Supportive Housing ("VASH") program, which provides rental assistance to veterans. Only a public housing authority can apply for VASH vouchers, which are allocated by HUD based on geographic need and the public housing authority's performance data. ECF 43-14, PageID 1722. VASH vouchers come in two forms-individual tenant-based rental assistance, and project-specific, project-based rental assistance ("PBRA").

As Craig Taylor explained, individual tenant-based housing vouchers are often useless to homeless veterans because, if a veteran has a criminal record or a history of eviction or lacks the financial means to pay the first and last month's rent, a landlord is unlikely to agree to lease to him. ECF 31-1, PageID 555. Moreover, in order for Freedom's Path to create a veterans-only housing complex, it needed project-based vouchers ("PBVs"). Id. at PageID 584-85.

Although project-based vouchers are also available under Section 8 of the Housing Act of 1937, Freedom's Path preferred VASH project-based vouchers, which combine rental assistance with "wraparound" case management and other clinical services provided by the Veteran's Administration. Id. at PageID 512, 584. For this reason, a commitment for VASH project-based vouchers is "the brass ring for these projects." Id. at PageID 579-80. After HUD issues a Notice of Funding Availability ("NOFA"), a public housing authority may apply for VASH project-based vouchers on its own behalf, on behalf of other entities, or both. ECF 43-14, PageID 1723. If a public housing authority applies on behalf of another entity, this increases the chance that HUD will award the VASH project-based vouchers. Id. at PageID 1724. This case stems from Greater Dayton Premier Management's refusal to apply for VASH project-based vouchers on behalf of Freedom's Path.

After obtaining the 5-year lease on the Veteran's Administration's Medical Campus, Freedom's Path applied to the Ohio Housing Finance Authority ("OHFA") for low-income housing tax credits, which are competitively awarded. OHFA requires a commitment from a public housing authority for project-based rental assistance for at least 50% of the proposed units. Because, at that point, Freedom's Path was proposing a 66-unitproject, it needed a commitment of 33 project-based vouchers from Greater Dayton Premier Management. ECF 31-1, PageID 520.

On April 9, 2013, Greater Dayton Premier Management's Interim Chief Executive Officer, Alphonzio Prude, extended support for the Freedom's Path project, committing 33 project-based vouchers "to assist with housing in the newly constructed sixty-six (66) unit building that will provide permanent supportive housing for homeless veterans." ECF 6-1, PageID 62. These were not VASH vouchers but were to be provided through HUD's Section 8 voucher program. ECF 33-2, PageID 745. Freedom's Path also received a $ 1 million promise of a grant from the Veteran's Administration. ECF 31-1, PageID 541.

Ohio Housing Finance Authority rejected Freedom's Path's application but encouraged it to reapply for low-income housing tax credits at a later date. Id. at PageID 531-32. Before reapplying, Freedom's Path worked to build additional community support for the project through the Housing Advisory Board and local government officials. Id. at PageID 537. Additional letters of support would increase the chance that Freedom's Path would be awarded low-income housing tax credits. Id. at PageID 587, 612-13.

In mid-December of 2015, Kim Powell, Acting Homeless Program Manager of the Dayton Veteran's Administration's Medical Campus, contacted Jennifer Heapy, Greater Dayton Premier Management's new Executive Director, about setting up a meeting with Craig Taylor to discuss the Freedom's Path project. ECF 40-2, PageID 914. Taylor sought an immediate letter from Greater Dayton Premier Management in support of his request for a letter of recommendation from the Housing Advisory Board. ECF 31-1, PageID 586-87. He also sought a commitment of VASH project-based vouchers from Greater Dayton Premier Management. He hoped that, in the summer of 2016, when HUD issued its next Notice of Funding Availability, Greater Dayton Premier Management would apply for 60 VASH vouchers on behalf of Freedom's Path. Greater Dayton Premier Management could then substitute some of those VASH vouchers for the 33 Section 8 project-based vouchers previously committed by Prude and return those 33 Section 8 vouchers to Greater Dayton Premier Management's pool. Taylor noted that Greater Dayton Premier Management also had unused VASH tenant-based housing vouchers that it could have converted into project-based vouchers. id. at PageID 546-48, 583-86.

Heapy responded that she was willing to talk to Taylor. With respect to Prude's earlier commitment of 33 project-based vouchers, she cautioned, however, that Prude "appears to have been unaware that HUD regulations do not allow the agency to commit project-based vouchers outside of the RFP bidding process and [Prude's actions] could result in HUD recapturing all of the subsidy for the project." ECF 40-2, PageID 913. She took the position that Prude's earlier commitment of 33 project-based vouchers was inconsistent with 24 C.F.R. § 983.51(b), the HUD regulation governing how a public housing authority ("PHA") must select project-based voucher ("PBV") proposals. That subsection of the regulation provides as follows:

(b) Selection of PBV proposals.The PHA must select PBV proposals in accordance with the selection procedures in the PHA administrative plan. The PHA must select PBV proposals by either of the following two methods.

(1) PHA request for PBV Proposals. The PHA may not limit proposals to a single site or impose restrictions that explicitly or practically preclude owner submission of proposals for PBV housing on different sites.

(2) Selection based on previous competition. The PHA may select, without competition, a proposal for housing assisted under a federal, State, or local government housing assistance, community development, or supportive services program that required competitive selection of proposals (e.g., HOME, and units for which competitively awarded low-income housing tax credits (LIHTCs) have been provided), where the proposal has been selected in accordance with such program's competitive selection requirements within 3 years of the PBV

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