White v. City of Annapolis, Civil Action No. CCB-19-1442

• Decision Date: 03 February 2020
• Docket Number: Civil Action No. CCB-19-1442
• Citation: 439 F.Supp.3d 522
• Parties: Heaven WHITE, et al. v. The CITY OF ANNAPOLIS BY AND THROUGH the CITY COUNCIL, et al.
• Court: U.S. District Court — District of Maryland

439 F.Supp.3d 522

Heaven WHITE, et al.

v.The CITY OF ANNAPOLIS BY AND THROUGH the CITY COUNCIL, et al.

Civil Action No. CCB-19-1442

United States District Court, D. Maryland.

Signed February 3, 2020

Patrick Joseph Donahue, Wise & Donahue, PLC, Kathleen Marie Hughes, Legal Aid Bureau Inc., Lisa Marie Sarro, Maryland Legal Aid, Annapolis, MD, for Heaven White, Nashell Smith, Nicole Clark, Tyneice Holliday, LaDawn Camp, Tiamani Johns, Jonathan Dixon, Breonna Dixon, D'Andre Covert, Glenn Rogers, Lakisha Fuller.

Ernest I. Cornbrooks, IV, Michael Brooks Rynd, Karpinski, Colaresi & Karp, P.A., Baltimore, MD, for the City of Annapolis, Gavin Buckley.

Carrie Blackburn Riley, Blackburn Riley LLC, Baltimore, MD, for Housing Authority of the City of Annapolis, Beverly Wilbourn.

MEMORANDUM

Catherine C. Blake, United States District Judge

The plaintiffs, almost all of whom identify as African American,¹ reside in public housing owned and operated by the Housing Authority of the City of Annapolis ("HACA"). They have sued the City of Annapolis (the "City") and Gavin Buckley as Mayor of the City of Annapolis (collectively, the "city defendants"), and HACA and Beverly Wilbourn as Executive Director of HACA (collectively, the "HACA defendants"). The plaintiffs' claims concern the City's decision not to enforce the inspection and licensing requirements in its residential property code on HACA-owned and operated public housing,² and HACA's decision not to comply with those requirements. The plaintiffs argue that the failure to enforce the inspection and licensing requirements on HACA properties disparately impacts African Americans and is discriminatory.

The plaintiffs filed their complaint on May 16, 2019, (ECF 1) and their amended complaint on June 12, 2019, (ECF 8). The city defendants and HACA defendants both have filed motions to dismiss³ or, in the alternative, for summary judgment.⁴ The motions have been fully briefed and oral argument was held on December 19, 2019. For the reasons set forth below, the motions will be granted in part and denied in part.

FACTS

The Annapolis City Code requires rental units to have operating licenses. (Annapolis City Code, Chapter 17.44.010). To obtain an operating license, the rental units must be inspected and in compliance with the City's Residential Property and Maintenance Code. (Id. 17.44.030 et seq. ; Am. Compl. ¶¶ 33–35). Landlords must pay a fee to obtain a license or a license renewal. (Annapolis City Code, Chapter 17.44.040(A); see Am. Compl. ¶ 64). The City, however, does not require inspections and licensing of HACA properties; such properties are the only rental properties in Annapolis that are neither licensed nor inspected. (Am. Compl. ¶ 37). This apparently is a longstanding arrangement, as although rental licenses have been required of landlords since approximately 1985, HACA housing units "have never been fully, finally, or properly inspected and licensed in accordance with the City Code." (Id. ¶ 40).

The plaintiffs live in nine households in five HACA properties: Harbour House, Newtowne Twenty, Eastport Terrace, Morris H. Blum Senior Apartments, and Robinwood.⁵ Although the timeline of events for each plaintiff is not entirely clear from the amended complaint, all of the plaintiffs allege defects in their housing units, generally toxic mold and/or water and sewage leaks, from around 2016 to the present. (See e.g. id. ¶¶ 186–188 (Smith family, toxic mold in apartment discovered in 2016); ¶ 214 (Holliday family, sewage pipe ruptured at unspecified time); ¶¶ 227–237 (Dixon family, HACA refused to properly treat mold in 2018); ¶ 249 (Glenn Rogers, odors out of ventilation caused intense burning in eyes starting in 2018)).

In November 2015, then-Mayor Michael J. Pantelides announced that he would start inspecting HACA properties in accordance with the city code and, on May 1, 2016, inspections commenced. (Am. Compl. ¶¶ 52–57, 73). The inspections were completed around August 2016 and uncovered 2,498 city code violations. (Id. ¶ 73). For example, the inspections revealed violations relating to smoke detectors and mold (id. ¶ 275, Fuller household), and ungrounded electrical outlets (id. ¶ 199, Clark household). According to the plaintiffs, many of the violations remain unremedied (e.g. id. ¶ 219, White household), the City did not require HACA to relocate tenants "pending the correction of the dangerous conditions" as required by the code (id. ¶ 75), and the HACA properties were never fully and properly licensed (Id. ¶ 76).

On April 18, 2017, Beverly Wilbourn became the executive director of HACA. (Id. ¶ 79). On December 7, 2017, a new Mayor, Gavin Buckley, was sworn in (id. ¶ 81), and at some point thereafter, according to the plaintiffs, he and HACA agreed to no longer enforce the inspection and licensing requirements on HACA properties, and to suspend City inspections.⁶ (Id. ¶¶ 101–105). According to the plaintiffs, HACA subsequently cut down on funding for residential services. (Id. ¶¶ 108–109); In the spring of 2018, HACA defunded or otherwise removed its full-time inspector on staff. (Id. ¶ 164).

The plaintiffs argue that the City's refusal to enforce the licensing and inspection requirements on HACA properties, and HACA's refusal to follow them, is discriminatory. While the racial composition of the HACA properties is not available from public sources, the racial composition of the census blocks where each property is located demonstrate that the "[r]esidents of the six Housing Authority properties are disproportionately Black" compared to the residents of the City of Annapolis as a whole. (Id. ¶ 169). According to the plaintiffs, five of the six HACA properties are located in majority Black census blocks, while three are located in blocks where more than 90% of residents are Black. (Id. ¶ 168). In contrast, in 2010, residents were 53.5% White, 25.7% Black, and 16.8% Latino. (Id. ¶ 171). Further, Annapolis's "Five Year Consolidated Housing and Community Development Plan Federal Fiscal Year 2015–2019," stated that 91.3% of the City's public housing units were occupied by Black tenants and 7% were occupied by White tenants, although this figure also includes public housing units that are not managed by HACA and that are inspected by the City. (Id. ¶ 171 & n.10).

The plaintiffs also argue that, in addition to the disparate impact, Annapolis's history supports an inference of intentional discrimination. The plaintiffs cite to Annapolis's history of segregation, and the 1960's urban renewal policies that pushed out African Americans from their communities, causing a housing crisis and forcing many African Americans into public housing. (Id. ¶ 25 (HACA segregated housing until the mid-1960's); ¶ 26 (urban renewal policies); ¶ 28 (African Americans moved to public housing units away from the city center)).

A brief explanation of the regulatory scheme for inspections of federally funded public housing, and HACA housing specifically, is helpful.⁷ First, federal law requires that "[e]ach public housing agency that owns or operates public housing shall make an annual inspection of each public housing project" and make it available to the Department of Housing and Urban Development ("HUD") upon request. 42 U.S.C. § 1437d(f)(3). HUD also conducts inspections of public housing, although, according to the plaintiffs, HUD inspects fewer than 20% of the HACA apartments, and HACA has up to four months of advance notice to prepare the apartments for inspection. (Id. ¶ 165). A federal regulation makes clear that HUD physical inspections do not relieve the housing authority "of the responsibility to inspect public housing units" and the physical condition standards set forth in the regulation "do not supersede or preempt state and local building and maintenance codes with which the PHA's public housing must comply." 24 C.F.R. § 902.20(d), (e).

Annapolis also receives federal funds, including the Community Development Block Grants ("CDBG") from HUD, which are used, in part, for low-income housing. (Am. Compl. ¶ 141). As a condition of receiving the grants, Annapolis consents annually to a mandatory duty to "affirmatively further fair housing," including by conducting "an analysis of impediments to fair housing choice" and taking "appropriate actions to overcome the effects of impediments identified through that analysis." (Id. ¶¶ 149–150).

Second, Maryland law provides that all housing projects "are subject to the planning, zoning, sanitary, health, fire, housing, subdivision, and building laws, ordinances, codes, rules, and regulations that apply where the housing project is located," Md. Code. Hous. Comm. Develop. ("HCD") § 12-403, except that "[t]o aid and cooperate in the planning, undertaking, construction, or operation of housing projects located wholly or partly in the area in which it may act, a State public body, with or without consideration and on terms that it determines, may ... plan, replan, zone, or rezone any part of the State public body, make exceptions to its sanitary, building, housing, fire, health, subdivision, or other similar laws, rules, regulations, and ordinances or make any changes to its map or master plan[.]" Md. Code HCD § 12-506(b)(9).

Finally, the City of Annapolis and HACA have a "Cooperation Agreement" that governs their relationship. The City entered into a Cooperation Agreement with HACA on March 10, 1950, and the most recent amendment was approved on February 6, 2009. (Id. ¶ 92).⁸ The agreement provides that the City should "[f]urnish or cause to be furnished to [HACA] and the tenants of such Project public services and facilities of the same character and to the same extent as are furnished from time to time without cost or charge to other dwellings and inhabitants in the Local Government." (Id. ¶ 94; ECF 18-6, Cooperation Agreement ¶ 5(a) (March 5, 1965)).⁹ The Cooperation Agreement also provides that "[i]nsofar as the Local Government may lawfully do so" it may ...