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Metz v. Herbert

United States District Court, M.D. Tennessee, Nashville Division

March 20, 2017

GEORGE METZ, MARILYN METZ, AUBREY PEARSON, JR., JACQUELINE PEARSON, BERRY WRIGHT, and EVELYN WRIGHT, Plaintiffs,
v.
WILLIAM B. HERBERT, IV in his official capacity as Zoning Administrator; METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, acting by and through its Planning Commission and Board of Zoning Appeals; and THE RIDGE AT ANTIOCH, LIMITED PARTNERSHIP, Defendants.

          MEMORANDUM

          ALETA A. TRAUGER United States District Judge

         Pending before the court are two Motions to Dismiss, one filed by the defendant, The Ridge at Antioch, Limited Partnership (the “Ridge”) (Docket No. 14), and one filed by the remaining defendants, the Metropolitan Government of Nashville and Davidson County and William B. Herbert, IV, in his official capacity as Zoning Administrator (collectively, “Metro”) (Docket No. 17), to which the plaintiffs have filed a single Response in opposition (Docket No. 18). For the reasons discussed herein, the defendants' motions will be granted.

         BACKGROUND & PROCEDURAL HISTORY

         This housing discrimination action was filed on November 18, 2016. (Docket No. 1.) The plaintiffs, who are a mix of African American and Caucasian individuals, are all homeowners and neighbors of a development area in Davidson County called the Forest View Park Planning Unit Development District (the “PUD”). The Ridge is a private developer that is planning to build within the PUD, subject to Metro's approval, affordable multi-family housing that renders the Ridge eligible for federal Low Income Housing Tax Credits (“LIHTCs”) through the State of Tennessee. The gravamen of the Complaint appears to be the plaintiffs' allegations that they have already suffered, and will continue to suffer, economic injury in the form of decreasing property values as a result of this adjacent development. The basis for this legal action is the plaintiffs' allegations that the defendants have unfairly targeted their neighborhood as a location for the development of LIHTC-eligible housing because the neighborhood currently has a higher percentage of racial minority residents than other areas of Davidson County. The Complaint alleges that building LIHTC-eligible housing, which itself attracts a disproportionate number of minority residents, in their neighborhood will advance racial segregation within the county and will perpetuate a concentration of poverty in predominantly minority communities such as the plaintiffs' neighborhood. According to the Complaint, predominantly Caucasian neighborhoods in the county tend to be zoned to exclude multi-family housing and tend to be treated differently with respect to the approval process for developers to build low-income housing there. The Complaint does not, however, point to any specific neighborhoods that have been treated differently than theirs with respect to zoning decisions or low-income housing development.

         The allegations in the Complaint center on two types of alleged misconduct by Metro: 1) approving the Ridge's development plans, despite environmental concerns regarding the level of toxins in the soil on the PUD site and the susceptibility of the topography of the site to sinkholes, and 2) approving ongoing changes to the Ridge's development plans (including the shifting of conditionally approved residential units from one part of the development site to another), without subjecting those changes to review by the Metropolitan Council. The Complaint specifically alleges that these actions violate Metro's own official policies and that Metro has committed these violations in a discriminatory manner due to the racial composition of the plaintiffs' neighborhood. The Complaint further alleges that the Ridge was aware of these discriminatory practices by Metro and has taken advantage of them for its own economic benefit. According to the Complaint, the Ridge's evolving development plans would not have been approved by Metro under the same conditions had the development project taken place in a predominantly Caucasian area of the county. Again, the Complaint, however, does not make any specific factual allegations about development projects in other areas of the county that have been treated differently by Metro.

         With respect to the environmental concerns, the Complaint makes the general allegation that levels of certain toxins have been found in the PUD site soil that could cause health concerns both for neighbors of the site during the development and, later, for residents. The Complaint also alleges that the propensity for sinkholes could pose both economic and safety concerns for the site itself and for adjacent properties. The Complaint does not, however, raise any specific factual allegations as to whether or how these environmental concerns are being addressed by Metro and/or the Ridge, nor do they cite any environmental regulations that allegedly have been, or stand to be, violated. Moreover, the Complaint does not make any specific factual allegations about the presence of environmental contaminants or risks having ever been handled differently in any other areas of the county (though there is the vague conclusory and hypothetical allegation that, in a predominantly Caucasian community, these concerns would be treated differently).

         With respect to the lack of review by the Metropolitan Council of ongoing changes to the Ridge's development plans, the plaintiffs point to the official written policies of Metro's Planning Commission for how to respond to requested changes to development plans after an initial conditional approval has been granted by the Council. According to the Complaint, these official policies permit certain types of minor changes to be treated as “revisions” that can be approved by the Commission alone but require other types of changes, such as those that would change the access to public streets, to be reviewed again by the Council as “amendments” to the development plan before approval is given.[1] The Complaint alleges that the Planning Commission has treated certain changes that the Ridge has requested to make to its conditionally approved development plan for the PUD as revisions, when they should have been treated as amendments. According to the Complaint, this demonstrates an unwritten internal Metro policy and practice of violating the official guidelines when approving the development of low-income housing in neighborhoods that are predominantly comprised of racial minorities. Again, however, the Complaint contains no allegations about other areas in the county where the Planning Commission has interpreted the official guidelines differently than it did here, or treated similar requests for changes to conditionally approved development plans differently.

         The Complaint purports to bring claims for violations of the following laws, without specifying which claims are brought against which defendants: the Civil Rights Act, 42 U.S.C. §§ 1981 (“Section 1981”), 1982 (“Section 1982”), and 2000d et seq. (“Title VI”); the Fair Housing Act of 1968, 42 U.S.C. § 3601 et seq. (the “FHA”) (in particular, the Complaint names FHA sections 3604(a), 3604(f), and 3617); the due process and equal protection clauses of the United States and Tennessee Constitutions;[2] the Tennessee Human Rights Act (the “THRA”); Title 17 of Metro's Zoning Code; the “Nashville Next Plan;” Section 2.222.020(k) of Metro's Code of Ordinances; Mayor Barry's Executive Order 005; and the “pending legislation doctrine” cited in Harding Academy v. Metropolitan Government of Nashville and Davidson County, 222 S.W.3d 359, 364 (Tenn. 2007). The Complaint seeks compensatory and punitive damages, as well as attorney's fees and costs. It also seeks a range of injunctive relief, including an injunction to stop the Ridge's development of the PUD and/or prohibit its ability to receive LIHTC benefits for the development.

         On January 20, 2017, the Ridge filed its Motion to Dismiss (Docket No. 14), along with a Memorandum in support (Docket No. 15). On the same day, Metro also filed a Motion to Dismiss (Docket No. 16), along with a Memorandum in support (Docket No. 17). On February 3, 2017, the plaintiffs filed a Response to both motions. (Docket No. 18.) In their response, the plaintiffs appear to concede that they are only bringing the following four claims: 1) violation of Section 1982, 2) violation of the FHA, 3) violation of the THRA, and 4) violation of the due process and equal protection clauses of the United States and Tennessee constitutions. The plaintiffs do not argue that the other local level statutes and regulations cited in the Complaint are distinct causes of action that they wish to pursue.[3] The plaintiffs also do not defend their claims brought under Section 1981 or Title VI of the Civil Rights Act.[4] Finally, the plaintiffs still do not clarify in their briefing which claims are being brought against which defendants.

         LEGAL STANDARD FOR MOTION TO DISMISS

         In deciding a motion to dismiss for failure to state a claim under Rule 12(b)(6), the court will “construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff.” Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007); Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir. 2002). The Federal Rules of Civil Procedure require only that a plaintiff provide “a short and plain statement of the claim that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957). The court must determine only whether “the claimant is entitled to offer evidence to support the claims, ” not whether the plaintiff can ultimately prove the facts alleged. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).

         The complaint's allegations, however, “must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). To establish the “facial plausibility” required to “unlock the doors of discovery, ” the plaintiff cannot rely on “legal conclusions” or “[t]hreadbare recitals of the elements of a cause of action, ” but, instead, the plaintiff must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). “[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 679; Twombly, 550 U.S. at 556.

         ANALYSIS

         This is a unique case in that the claims at issue are for racial discrimination in the context of housing and municipal zoning, yet the claims are not based on allegations that the plaintiffs themselves have been denied access to housing or that their properties have been directly subject to the zoning decisions being challenged.[5] The defendants point out in their briefing that the plaintiffs are a racially diverse group alleging that they have all suffered the same injuries, and the defendants argue that, therefore, the defendants' conduct cannot be said to have had a disparate impact on any particular racial group. The plaintiffs emphasize, however, that, rather than claiming a disparate impact on any individual plaintiff, they are bringing claims on behalf of their entire neighborhood, which is disproportionately comprised of racial minorities, and their claims are about the disparate impact of the defendants' actions on their neighborhood as a whole, relative to other predominantly Caucasian neighborhoods. The court finds that the primary flaw in the plaintiffs' argument is not the fact that the plaintiffs are not all racial minorities but, rather, the plaintiffs' failure to show that the particular rights that are relevant to the claims at issue have been violated at all, let alone that these rights have been violated on the basis of race.

         As best the court can discern, the plaintiffs are seeking redress for what is essentially an economic interest in the value of their properties that they allege has been injured by the decision to allow low-income housing to be developed nearby. As discussed more fully below, any such interests are not protected by Section 1982, the FHA, or the substantive due process protections of the 14th Amendment to the United States Constitution. The procedural due process claim has not been adequately pled because the Complaint does not allege sufficient facts to find that the plaintiffs have been denied the opportunity to be heard in connection with the loss of a protected property right. The equal protection claim against Metro is the most fitting claim in this action, to the extent that the plaintiffs are alleging that their economic interests have been treated differently by Metro than the economic interests of homeowners in predominantly Caucasian neighborhoods within Davidson County. As discussed more fully below, however, this claim, too, has not been ...


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