Lawyers on both sides of a suit accusing the town’s Planning & Zoning Commission and its chairman of discriminating against minorities recently filed briefs arguing over the case’s merits.
A former affordable housing applicant is suing P&Z and its chairman, Fred Conze, accusing both of discriminatory practices against minorities — specifically blacks. The town had turned down the project on OakCrest because of its potentially adverse impact on the Goodwives River, among other reasons.
The development, proposed by property-owner Chris Hamer, included a four-unit, 2,981 square-foot building and a six-unit, 5,025 square foot building, and about 280 feet of driveway and parking area. Three units would have been be affordable.
“The defendants have followed a pattern of official misconduct designed to exclude African Americans from the town of Darien, by keeping housing costs prohibitively high and preventing the construction of affordable housing units which would be attractive to minorities,” states the case filed at the end of year by former Darienite Chris Hamer.
Previous lawsuits against the town’s Environmental Protection Commission and Planning & Zoning Commission filed by Hamer, would-be developer of Oak Crest Villas, were dismissed by New Britain Superior Court in February of last year.
State statute 8-30g says that if a town’s affordable housing stock is less than 10%, it allows developers to overstep local zoning laws for proposals that include affordable housing. Hammer was trying to use this statute to build housing on OakCrest.
In a Feb. 17 brief, attorneys for the town argued that the courts should dismiss the case on the grounds that the statute of limitations has expired.
“Conn. Gen. Stat. 46a-64c et. seq. makes it unlawful to discriminate on the basis of ‘race, creed, color, national origin, ancestry, sex, marital status, age…,” the motion says, but adds that any action must be brought “within one year of the date of the alleged discriminatory practice.”
While the motion says Hamer’s side might argue the appeals process needed to be resolved before the discriminatory action could be brought forward, the courts do not require “Plaintiffs to exhaust administrative remedies prior to commencing a action for violating the above statute.
In response, John Williams, attorney for Hamer, disagreed that the court has no power to toll, or stall, a statute of limitations on the discrimination action.
Williams said that a case isn’t “ripe,” or ready to be litigated on the Supreme Court level, until “the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue.”
“These matters cannot be resolved in definitive terms until a court knows the ‘extent of permitted development’ on the land in question,” Williams argued.
Williams also argued that the Fair Housing Act did pre-empt the Fourteenth Amendment, which grants equal rights to all citizens born or naturalized in the U.S., and requires “no state shall make or enforce any law which shall abridge the privileges or immunities of all citizens of the United States.”
He said the “Second Circuit has repeatedly allowed suits alleging racial discrimination in housing to assert both FHA claims and Fourteenth Amendment equal protection claims.”
Williams previously described Conze in particular as “our smoking gun,” given the quotes the P&Z Chairman was “candid enough to say.”
Quotes by Conze in two instances are used as examples of anti-minority sentiment in the lawsuit.
In July 2008, Conze is quoted from P&Z meeting as calling affordable housing a “virus” and said “once you open the box, you never get it back in the bottle, because it will be replicated all over town.”
In the second example, an excerpt from Conze’s 2010 State of the Town address to the Representative Town Meeting:
“Our objective is to preserve the character of the town. The demographic and economic forces generated by our immediate neighbors to our east and west cannot be taken lightly,” he said.
“That’s about as close to a smoking gun as I’ve ever seen,” Williams said.
In talking about the demographic of neighbors, Williams said Conze was referring to the populations of both Stamford and Norwalk.
“The obvious demographic issue relates to African Americans,” Williams said.
“He did everything but use the ‘N’ word,” Williams said, referring to the racial slur.
The lawsuit also alleges that the “defendants secretly collude with private citizens residing near the subject property in bringing a meritless lawsuit against the plaintiffs.”
Hamer alleges the lawsuit was to increase his development costs and make the project economically impossible — which he said led to the foreclosure of the property.
“The conduct of the defendants described above was intended to discriminate against expected buyers of the plaintiff’s condominium units on the basis of race, it being the purpose and intention of the defendants to exclude persons of African-American ancestry from the Town of Darien,” the lawsuit alleges.
Hamer appealed the project denials in December 2008 against the EPC, and in February 2009 against P&Z, after each commission denied his 8-30g project.
Earlier this year, Planning & Zoning Department Director Jeremy Ginsberg said both cases were dismissed because the Hamers were foreclosed upon.
“The EPC case was dismissed first, because Mr. Hamer lacked agreement because he no longer owned the property,” Ginsberg said.
Once that case was dismissed, the town asked the court to dismiss the case against the Planning & Zoning Commission, and that case was also dismissed.
Citing potentially adverse impacts on the Goodwives River, the Environmental Protection Commission unanimously denied the Oak Crest Villas proposal in November 2009. Peter Hillman, chairman of the EPC, said that the proposal of 10 units in two buildings and at least 20 parking spaces at the end of the dead-end Oak Crest would have increased the property’s impervious surface from 17% to 52%.
P&Z followed the same path, denying the proposal because the plan was not in accordance with the town Plan of Conservation & Development, also citing the problems with the location on a residential, dead-end street.
P&Z also pointed out that the project was “so unreasonable” the now-dissolved Darien Affordable Housing Advisory Commission “took the unprecedented action of opposing this affordable housing application.”
Williams said ultimate goal of the lawsuit is that the Hamers receive economic compensation as well as some injunctive relief made in town – which means making changes in how the town operates in the future.
Conze declined comment on the lawsuit.
Williams told The Darien Times this week that for the reasons outlined in his brief, “I am confident that the defense motion will be denied and we will have the opportunity to present our case to the jury.”
sshultz@darientimes.com
