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UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION

UNITED STATES OF AMERICA,
     Plaintiff,

v.

CITY OF LAKE STATION,
INDIANA and THE ADVISORY PLAN
COMMISSION OF THE CITY OF
LAKE STATION, INDIANA,
     Defendants.

**********************************************

CIVIL ACTION NO. 2:98-CV-478 RL

THE NORTHWEST INDIANA OPEN
HOUSING CENTER
     Intervenor-Plaintiff,

v.

CITY OF LAKE STATION,
INDIANA and THE ADVISORY PLAN
COMMISSION OF THE CITY OF
LAKE STATION, INDIANA,      Defendants.

_______________________________________________

CONSENT ORDER

The United States, the Northwest Indiana Open Housing Center ("NIOHC"), the City of Lake Station, Indiana ("City") and the Advisory Plan Commission of the City of Lake Station, Indiana ("Plan Commission") jointly enter into this Consent Order in order to resolve the above-captioned lawsuit.

The lawsuit alleges that the City and the Plan Commission (collectively "defendants") violated the Fair Housing Act, 42 U.S.C. §3601 et seq., by refusing to permit the Lake County Economic Development Corporation ("LCEDC") to develop Timbercreek Estates ("Timbercreek"), a planned subdivision of affordable, owner-occupied, single-family homes. The LCEDC proposed building Timbercreek on an approximately 107-acre City lot. The United States and NIOHC contend that the Plan Commission's refusal to permit the development of Timbercreek was based on fears that the subdivision's residents would be African American.

Defendants claim that they rejected the Timbercreek proposal for legitimate reasons, including lack of sanitary sewer capacity, and deny that they violated the Fair Housing Act.

Despite their competing contentions, the parties desire to avoid the expense, burden and uncertainty of further contested litigation, and, as indicated by the signatures appearing below, agree that this action should be fully and finally resolved by the terms of this Consent Order. Defendants' agreement to enter into the Order does not in any way constitute an admission of liability. However, the parties agree that in the event that Defendants commit any future violation of the Fair Housing Act, such violation shall constitute a "subsequent violation" under 42 U.S.C. §3614(d).

WHEREFORE, based on these understandings and commitments, the undersigned parties agree, and the Court orders, as follows:

  1. DEFINITION OF "CITY"

  1. For the purposes of this Consent Order, the "City" refers to the political subdivision of Lake Station, Indiana and all the constituent parts of its governmental structure, including the Mayor, the Common Council, the Plan Commission, the Board of Public Works and Safety, and all other boards, bodies, officials and employees. Accordingly, any action that this Consent Order requires the City to take shall bind, and shall be taken by, whichever constituent part(s) of the City's governmental structure is authorized by law to take such action, including the Mayor, the Common Council, the Plan Commission, the Board of Public Works and Safety, and/or any other board, body, official or employee.

  1. PRECONDITIONS TO FINAL RESOLUTION OF THE LITIGATION

  1. On or before August 31, 2000, the City shall present this Consent Order to the City's Common Council, the Plan Commission and the City's Mayor for approval or other "Final Action," as defined by Indiana Code §5-14-1.5-2(g). Additionally, on or before August 31, 2000, the City's Common Council, the Plan Commission, and the City's Mayor each shall approve or take other Final Action on this Consent Order. Litigation in this action shall be stayed pending these approvals or other Final Actions.

  2. LCEDC has newly applied for plat approval for the "First Phase of Timbercreek," which consists of 55 lots designated for single-family homes. LCEDC's application and preliminary plat, attached as Exhibit 1, have not previously been submitted to the City. The Plan Commission and the City agree that Exhibit 1 complies with all applicable requirements of the City's Subdivision Ordinance and is appropriate for consideration at a public hearing and thereafter for Final Action by the Plan Commission. On or before August 31, 2000, the Plan Commission shall hold the required public hearing on the preliminary plat and approve the preliminary plat.

  3. The City has proposed amending its tax abatement resolution to ensure that all homes constructed in Timbercreek are eligible for tax abatement under Indiana Code §6-1.1-12.1 and pertinent City ordinances and resolutions. The proposed amendment is attached hereto as Exhibit 2. The City's Common Council shall consider, vote and take Final Action on Exhibit 2 no later than August 31, 2000.

  4. If, by August 31, 2000, all of the following occur, this Consent Order shall become binding upon all the parties, and this action shall be fully resolved: (a) The City's Common Council, the Plan Commission and the City's Mayor unconditionally approve this Consent Order; (b) The Plan Commission unconditionally approves the preliminary plat for the First Phase of Timbercreek; and (c) The City's Common Council unconditionally approves the amendments to the City's tax abatement ordinance contained in Exhibit 2. If (a), (b) and (c) all occur by August 31, 2000, the City shall so indicate by filing with the Court, no later than September 8, 2000, a fully executed copy of Exhibit 3 attached hereto. If (a), (b) and (c) do not all occur by August 31, 2000, this Consent Order shall be void and of no effect, the litigation herein shall proceed, and the City shall reimburse LCEDC for any costs it incurred attempting to secure preliminary plat approval for the First Phase of Timbercreek, including but not limited to application fees, costs related to notice of the public hearing, reasonable attorneys' fees and reasonable engineering fees.

  1. NONDISCRIMINATION PROVISION

  1. The City, the Plan Commission, their officials, agents, and employees, and any person in active concert or participation with any of them, shall not:

    1. Make unavailable or deny a dwelling to any person because of race, color or national origin;

    2. Deny permission to develop or construct, or otherwise impede development or construction of, housing because of race, color or national origin; and

    3. Engage in any other discriminatory housing practice prohibited by 42 U.S.C. §§ 3601 et seq.

    This paragraph shall not be construed to mean that defendants have an affirmative obligation to approve or allow any housing development not in conformity with valid requirements of applicable law.

  1. DEVELOPMENT OF TIMBERCREEK

  1. The City has initiated a "Sewer Project" to improve the City's sanitary sewer system. The Sewer Project will proceed in two phases. "Phase One" involves redirecting effluent originating in the northeastern section of the City, which now flows to the City's main interceptor along Fairview Avenue, to a new force main north of Interstate 80/94 that will transfer such effluent directly into the Gary Sanitary District. "Phase Two" involves redirecting the effluent originating in the south-central section of the City from the main interceptor through a new force main running north, which will transfer such effluent to the force main referenced in the preceding sentence.

  2. Construction of Phase One of the Sewer Project shall commence on or before November 1, 2000. The contract into which the City enters for the construction of Phase One shall require Phase One to be completed within 120 days after construction commences, but in any event no later than February 28, 2001. If any of the following occur, the United States and NIOHC shall not unreasonably refuse to agree to extend the above-established deadline for commencement of Phase One construction: (a) the City uses its best efforts to ensure that the Indiana Department of Environmental Management ("IDEM") approves Phase One plans and specifications and, despite such best efforts, IDEM fails to do so by November 1, 2000; (b) the City uses its best efforts to ensure that the Gary Sanitary District ("GSD") approves the sewer connections required by Phase One and, despite such best efforts, GSD fails to do so by November 1, 2000; or (c) the City uses its best efforts to draw down, by November 1, 2000, its existing federal grant for sewer improvements, which is currently held by the United States Department of Housing and Urban Development ("HUD"), and, despite such best efforts, is unable to do so. If, despite its best efforts to obtain all authorizations and funding necessary to complete Phase One of the Sewer Project, the City is unable to obtain such authorizations and funding, then the parties shall in good faith seek to devise, pursuant to ¶28 below, a mutually agreeable plan for enabling completion and occupancy of all homes in the First Phase of Timbercreek.

  3. Construction of Phase Two of the Sewer Project shall commence on or before May 1, 2001. The contract into which the City enters for the construction of Phase Two shall require Phase Two to be completed within 150 days after construction commences, but in any event no later than October 27, 2001. If any of the following occur, the United States and NIOHC shall not unreasonably refuse to agree to extend the above-established deadline for commencement of Phase Two construction: (a) the City submits Phase Two plans and specifications to IDEM by December 1, 2000, and otherwise uses its best efforts to have IDEM approve them, but IDEM fails to do so by May 1, 2001; (b) the City applies to GSD for the sewer connections required by Phase Two by November 1, 2000, and otherwise uses its best efforts to have GSD approve them, but GSD fails to do so by May 1, 2001; or (c) the City makes its best efforts to obtain the funding necessary to complete Phase Two and, despite such best efforts, is unable to obtain adequate funding by May 1, 2001. The City represents and warrants that it has properly applied, or will properly apply, for such funding from HUD's Economic Development Initiative - Special Projects Grant.

  4. If, despite its best efforts to obtain all authorizations and funding necessary to complete Phase Two of the Sewer Project, the City is unable to obtain such authorizations and funding, then the City shall devise an alternative to Phase Two that allows, or otherwise shall permit, construction of "Subsequent Phases of Timbercreek," consisting of a total of 125 additional homes, to begin, in accordance with ¶¶14 - 16 below, no later than May 1, 2002.

  5. Within 30 days after the Plan Commission grants preliminary plat approval for the First Phase of Timbercreek, the City, through the various authorities it has designated under its Subdivision Ordinance, shall take all actions required to complete consideration of the First Phase plat, including but not limited to: (a) examining all proposed improvements pursuant to Chapter 1109 of the City's Subdivision Ordinance; (b) setting an appropriate bond, if necessary; (c) granting final plat approval upon request by LCEDC, provided that the final plat satisfies all state statutory and City ordinance requirements; and (d) entering final approval in writing on the plat. Throughout the platting process, the Plan Commission and the City shall work cooperatively with LCEDC, as necessary, to ensure that LCEDC complies with all applicable requirements of the City's Subdivision Ordinance.

  6. LCEDC may begin developing the First Phase of Timbercreek immediately upon approval of the final plat by the City. Accordingly, upon approval of the final plat for the First Phase of Timbercreek, LCEDC may begin clearing and grading the First Phase land and developing any required infrastructure, including but not limited to streets, curbs, and water and sewer lines. Additionally, upon approval of the final plat of the First Phase of Timbercreek, LCEDC may apply for any permit, authorization or other approval required to complete development and allow occupancy of the first four (4) homes in the First Phase of Timbercreek, including approval for sewer connections. Provided that LCEDC's application for any such permit, authorization or other approval complies with applicable law, the City shall approve the application no more than three business days after it is submitted.

  7. Any time after completion of Phase One of the Sewer Project, LCEDC may apply for any permit, authorization or other approval required to complete development and allow occupancy of any home in the First Phase of Timbercreek. Provided that LCEDC's application for any such permit, authorization or other approval complies with applicable law, the City shall approve the application no more than three business days after it is submitted.

  8. Any time after completion of Phase Two of the Sewer Project, or, if Phase Two is not constructed in accordance with this Consent Order, any time after an alternative method for completing development of Timbercreek is implemented pursuant to ¶10 above, LCEDC may apply for plat approval for one or more Subsequent Phases of Timbercreek, consisting of up to a total of 125 units. Upon submission of any such application, the Plan Commission and the City shall work cooperatively with LCEDC, as necessary, to ensure that LCEDC complies with all applicable requirements of the City's Subdivision Ordinance. Within 90 days after LCEDC submits an application for plat approval for a Subsequent Phase of Timbercreek, the City, through the various authorities it has designated under its Subdivision Ordinance, shall take all actions required to complete consideration of the plat of that Subsequent Phase, including but not limited to: (a) holding the required public hearing; (b) approving the preliminary plat, provided that it satisfies all state statutory and City ordinance requirements; (c) examining all proposed improvements pursuant to Chapter 1109 of the Subdivision Ordinance; (d) setting an appropriate bond, if necessary; (e) approving the final plat upon request by LCEDC, provided that the final plat satisfies all state statutory and City ordinance requirements; and (f) entering final approval in writing on the plat. If, without just cause, the City does not approve and record the final plat for a Subsequent Phase of Timbercreek within 90 days after LCEDC submits an application for approval, then the City shall reimburse LCEDC for any costs it incurred during the platting process, including but not limited to application fees, costs related to notice of the public hearing, attorneys' fees and engineering costs. Such reimbursement shall not be the exclusive remedy for the City's failure to approve and record the final plat for any Subsequent Phase of Timbercreek, as plaintiff parties may take action pursuant to ¶28 below.

  9. LCEDC may begin developing any Subsequent Phase of Timbercreek immediately upon the City's approval of the final plat for such Subsequent Phase. Accordingly, upon approval of the final plat for any Subsequent Phase of Timbercreek, LCEDC may begin clearing and grading the land and developing any required infrastructure, including but not limited to streets, curbs, and water and sewer lines.

  10. Any time after completion of Phase Two of the Sewer Project, or, if Phase Two is not constructed in accordance with this Consent Order, any time after an alternative method for completing development of Timbercreek is implemented pursuant to ¶10 above, LCEDC may apply for any permit, authorization or other approval required to complete development and allow occupancy of any home in any Subsequent Phase of Timbercreek. Provided that LCEDC's application for any such permit, authorization or other approval complies with applicable law, the City shall approve the application no more than three business days after it is submitted.

  1. OTHER RELIEF

  1. For three years from the date of final plat approval of the First Phase of Timbercreek, the City shall approve any residential tax abatement application properly submitted by any First Phase homeowner in accordance with Indiana Code §6-1.1-12.1 and pertinent City Resolutions. For three years from the date of plat approval for any Subsequent Phase of Timbercreek, the City shall likewise approve any residential tax abatement application properly submitted by any homeowner in that Phase in accordance with Indiana Code §6-1.1-12.1 and pertinent City Resolutions. All tax reductions awarded pursuant to this paragraph shall be phased over six years, consistent with pertinent existing City resolutions and Indiana Code § 6-1.1-12.1-4(d)(2).

  2. For each Timbercreek home issued a building permit within three years after the date of final plat approval for the Phase in which that home is located, the City shall waive the following fees: (a) building and occupancy permit fees; and (b) all inspection fees. The City shall also waive water meter installation fees for the first four (4) homes in the First Phase of Timbercreek.

  3. On November 1, 2000, the City shall pay LCEDC the amount of $10,000.00, to be used by LCEDC to advertise and affirmatively market homes in Timbercreek to prospective home buyers residing both in and outside the City's boundaries. The City may utilize Community Development Block Grant funds to satisfy the terms of this paragraph.

  4. Each party shall bear its own attorney's fees and costs.

  1. EDUCATION AND TRAINING

  1. Within 60 days after the date of entry of this Order by the Court, the City's Mayor and the members of the Plan Commission, Board of Public Works and Safety, Board of Zoning Appeals and Common Council shall attend a one-half day educational training program concerning federal, state, and local fair housing laws, regulations and/or ordinances. The educational program shall be conducted by NIOHC. Any reasonable expenses associated with this program shall be borne by the City and paid to NIOHC. All persons attending this program shall have their attendance certified in writing by the person conducting it.

  2. Within 90 days of entry of this Consent Order by the Court, NIOHC and the City shall enter into a contract providing that NIOHC render services to the City for five fiscal years beginning with Fiscal Year 2002. The contract shall provide that, as consideration for these services, the City shall pay NIOHC $5,000 on October 1, 2001 and on October 1 of each of the four succeeding years. These sums may be paid out of the City's Community Development Block Grant funds.

  1. RECORD KEEPING AND REPORTING

  1. The City shall maintain the following records during the term of this Order:

    1. All records pertaining to development of Timbercreek;

    2. All records pertaining to any proposal to develop a subdivision or multi-family apartment complex in the City;

    3. All records pertaining to any proposal to develop affordable, public, subsidized, or other low cost housing in the City;

    4. All records, including but not limited to minutes, reports, and correspondence, pertaining to the City's efforts to study, repair, upgrade, and/or maintain its sewer system.

  2. Defendants will send NIOHC advance notice and minutes of all meetings that concern the development or acquisition of any affordable, public, subsidized or other low-cost housing in the City.

  3. Three months after the date of entry of this Order by the Court, and every three months thereafter for a period of three years, the City shall send to the United States and NIOHC a report:

    1. Listing all subdivision applications or applications for the development or acquisition of any affordable, public, subsidized, or other low-cost housing which have been considered by the City in the previous three months, and providing for each:

      1. the name, address, and phone number of the developer or project contact;

      2. the nature of the proposal, including the number and type (e.g. single family, duplex, etc.) of units to be developed, and the location of the proposed development; and

      3. a brief description of any action(s) taken by the City with regard to that proposal during the previous three months;

    2. Containing all fair housing training certifications completed pursuant to ¶21 above.

    3. Containing copies of all documents generated by the City regarding Timbercreek; and

    4. Describing the current status of the City's efforts to study, repair, upgrade, and/or maintain its sewer system, and attaching copies of any reports containing this information.

  4. Upon reasonable notice to the City, the United States and NIOHC shall be provided access to the records retained pursuant to ¶23 above and/or further documentation regarding documents submitted pursuant to ¶¶24-25 above.

  1. DISPUTE RESOLUTION, ENFORCEMENT AND TERMINATION

  1. The Court shall retain jurisdiction over this case for the purpose of enforcing this Order.

  2. The parties shall endeavor in good faith to resolve informally any difference regarding interpretation of or compliance with this Order prior to bringing such matter to the Court for resolution. If the dispute is not resolved, any party, upon certification that efforts were made to resolve the dispute, may move the Court to impose any remedy authorized by law or equity, including enforcement of any of the provisions of this Order. Prior to the filing of any such motion, neither the parties nor LCEDC shall be required to pursue or exhaust any administrative or other procedure or remedy provided for by any City or state law.

  3. Upon notification to the Court that the development of all Phases of Timbercreek have been completed, or seven years from the date of entry of this Order by the Court, whichever first occurs, this Order shall terminate and this action shall be dismissed with prejudice, unless, within 60 days after receiving such notification, the United States or NIOHC files a motion objecting to dismissal. Any such motion must specify with particularity the reasons for the objection and any ground for claiming that the City and/or the Plan Commission have not fully satisfied the terms of this Order.

It is hereby ORDERED, ADJUDGED AND DECREED this _______________ day of ________________, 2000.

_________________________________
UNITED STATES DISTRICT JUDGE

The undersigned agree to and request entry of this Consent Order.

FOR THE UNITED STATES:

ISABELLE M. THABAULT
SETH ROSENTHAL
Attorneys
Housing and Civil Enforcement Section
Civil Rights Division
Department of Justice
P.O. Box 65998
Washington, D.C. 20035-5998
(202) 514-4713

DAVID CAPP
United States Attorney

J. PHILIP KLINGEBERGER
No. 5252-45
Assistant U.S. Attorney
U.S. Attorney's Office
Northern District of Indiana
1001 Main Street, Ste. A
Dyer, IN 46311
(219) 322-8576

FOR THE CITY OF LAKE STATION AND THE PLAN COMMISSION:

TIMOTHY SENDAK
PAUL STANKO
Sendak, Neff, Rominger & Stanko
209 South Main Street
Crown Point, IN 46307
(219) 663-0015

FOR THE NORTHWEST INDIANA OPEN HOUSING CENTER:

JEFFREY K. ROSS
BETH T. GOLUB
Seyfarth, Shaw, Fairweather & Geraldson
55 East Monroe Street, Suite 4200
Chicago, Illinois 60603
(312) 346-8000

JEFFREY A. HARKIN
No. 18684-45
252 Wildwood Road, Suite 101
Hammond, Indiana 46324
(219) 933-9339

General Information Housing and Civil Enforcement Section
 
Leadership
Steven H. Rosenbaum
Chief
Contact
Housing & Civil
Enforcement Section
(202) 514-4713
TTY - 202-305-1882
FAX - (202) 514-1116
To Report an Incident of Housing Discrimination:
1-800-896-7743
Mailing Contact
U.S. Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, N.W.
Housing and Civil Enforcement Section, NWB
Washington, D.C. 20530

Email: fairhousing@usdoj.gov

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