Opinion
11067 Index 151786/18
02-20-2020
In re CHURCHES UNITED FOR FAIR HOUSING, INC., et al., Petitioners–Appellants, v. Bill DE BLASIO, etc., et al., Respondents–Respondents.
Communities Resist, Inc., Brooklyn (Adam Meyers of counsel), for appellants. James E. Johnson, Corporation Counsel, New York (Jeremy W. Shweder of counsel), for Bill De Blasio and the City of New York, respondents. Fox Rothschild LLP, New York (Karen Binder of counsel), for Harrison Realty, LLC, respondent.
Communities Resist, Inc., Brooklyn (Adam Meyers of counsel), for appellants.
James E. Johnson, Corporation Counsel, New York (Jeremy W. Shweder of counsel), for Bill De Blasio and the City of New York, respondents.
Fox Rothschild LLP, New York (Karen Binder of counsel), for Harrison Realty, LLC, respondent.
Gische, J.P., Webber, Oing, Singh, JJ.
Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered August 1, 2018, which denied the amended hybrid CPLR article 78 petition and declaratory judgment complaint seeking an order annulling respondent City of New York's October 31, 2017, approval of an application brought by respondent Harrison Realty LLC (Harrison) for rezoning of its Pfizer Site housing development project, and dismissed the proceeding, unanimously affirmed, without costs.
As conceded by the parties, there is no express or implied private right of action for enforcement of 42 USC § 3608, the Federal Housing Act's provision requiring the Department of Housing and Urban Development to affirmatively further fair housing (AFFH) (see 42 USC §§ 3602 [f], 3613[a][1][A]; Latinos Unidos De Chelsea En Accion (Lucha) v. Secretary of Hous. & Urban Dev., 799 F.2d 774, 791–792 [1st Cir. 1986] ; MHANY Mgt. v. County of Nassau, 843 F Supp 2d 287, 333 [E.D.N.Y.2012], affd in part, vacated on other grounds in part 819 F.3d 581 [2d Cir. 2016] ).
Because there is no private right of action for enforcement of Section 3608—let alone any "unambiguously conferred right"—petitioners may not use 42 USC § 1983 as a mechanism to sue for enforcement of section 3608 ( Gonzaga Univ. v. Doe, 536 U.S. 273, 283, 122 S.Ct. 2268, 153 L.Ed.2d 309 [2002] ; accord Matter of George v. Bloomberg , 2 A.D.3d 294, 294, 769 N.Y.S.2d 535 [1st Dept. 2003], lv denied 2 N.Y.3d 707, 781 N.Y.S.2d 289, 814 N.E.2d 461 [2004] ; see MHANY, 843 F Supp 2d at 336–337 ; South Middlesex Opportunity Council, Inc. v. Town of Framingham, 2008 WL 4595369, at *17, 2008 U.S. Dist LEXIS 85764, at *51-52 [D.Mass. 2008] ).
Assuming, arguendo, that petitioners may bring a CPLR article 78 proceeding to challenge the City's action (see Matter of East Ramapo Cent. Sch. Dist. v. King, 29 N.Y.3d 938, 73 N.E.3d 342 [2017] ; cf. George, 2 A.D.3d at 294, 769 N.Y.S.2d 535 ), we find that the City amply met its AFFH obligation through facially race-neutral measures to expand the supply of affordable housing, by ensuring that Harrison complied with the City's standing ratios of affordable to market housing (see Texas Dept. of Hous. & Community Affairs v. Inclusive Communities Proj., Inc., ––– U.S. ––––, 135 S Ct 2507, 2522–2525, 192 L.Ed.2d 514 [2015] ). The City also permissibly responded to community concerns about apartment sizes by conditioning approval of the project on another facially race-neutral measure, namely, the developer's execution of a restrictive declaration—formulated as a covenant running with the land—capping the percentage of three- and four-bedroom affordable units. This measure prudently balanced apartment sizes in order to reflect assessed need among area residents, as reflected in extensive public comment during the many hearings held during the months of overlapping review.
Accordingly, the City's review comported with its AFFH duties under the FHA under prevailing HUD regulations (see 24 CFR § 5.152 ; 80 Fed Reg 42272, 42349 [2015] ). In particular, having taken facially race-neutral measures to promote affordable housing in the project, the City was not required to perform analysis aimed at forecasting the mix of ethnicities expected to occupy units in the development, and the corresponding impact on prevailing area patterns of racial and ethnic concentration. For the same reasons, the City's review was rational and not contrary to law (see CPLR 7803 ; Matter of Partnership 92 LP & Bldg. Mgt. Co., Inc. v. State of N.Y. Div. of Hous. & Community Renewal , 46 A.D.3d 425, 428, 849 N.Y.S.2d 43 [1st Dept. 2007] ).