THE DISTRICT OF NEW JERSEY
UNITED STATES OF AMERICA,
C.A. NO. 94CV1126 (JEI)
CITY OF WILDWOOD, NEW JERSEY;
DIANE TULLIE, City Inspector;
and WILLIAM GANNON, City
The United States commenced this action on March 4, 1994 alleging violations of the Fair Housing Act, 42 U.S.C. § 3614, as amended by the Fair Housing Amendments Act of 1988, 42 U.S.C. SS 3601, et seq. The Complaint alleges that the defendants City of Wildwood, New Jersey, Diane Tullie and William Gannon have engaged in a pattern or practice of discriminating on the basis of familial status and national origin against persons who seek to rent dwellings in the City of Wildwood. In particular, the Complaint alleges that the purpose and effect of minimum occupancy limitations enacted by the City in 1990 has been to limit or preclude families with children, especially Hispanic families with children, from residing within the City of Wildwood. The Complaint seeks actual damages for all aggrieved persons, including persons as yet unidentified, punitive damages, and a civil penalty.
The defendants admit that if this case were to proceed to trial, the United States would be able to establish the following, which would be consistent with a finding by the Court that a disparate impact on families with children, particularly Hispanic families with children, resulted from the enactment and enforcement of Wildwood's current square footage requirements, in violation of the amended Fair Housing Act, 42 U.S.C. § 3604:
- The City of Wildwood, New Jersey is a political subdivision established and operated as a municipal corporation under the laws of the State of New Jersey. Wildwood is located on the southeastern shore of the state. It is a seaside resort during the summer.
- At the time of the 1980 Census, the City of Wildwood had a total population of 4,902 persons, of whom 142 or 2.9 per cent were Hispanic.
- While the overall population in Wildwood has decreased since the 1980 Census, the number of Hispanics in the City has more than doubled. At the time of the 1990 Census, Wildwood had a population of approximately 4,484 persons, of whom 312 or 7 per cent were Hispanic.
- The majority of existing residents of Wildwood are non-Hispanic.
- On January 22, 1991, the City enacted Ordinance 265-90. Section 403.11 of the ordinance contains occupancy standards which limit the number of persons who may occupy a residential dwelling based on the overall size of the dwelling.
- The occupancy standards, as adopted and enforced by the defendants, are more restrictive than either the Building Officials and Code Administrators National Property Maintenance Code ("BOCA") or New Jersey's occupancy code. For example, in many applications of the occupancy standards, the City's minimum square footage requirements do not permit two persons for each bedroom in a dwelling.
- The City has focused its enforcement efforts on two types of housing when enforcing its minimum floor area occupancy standards: (1) all new Section 8 housing (property that became available to Section 8 recipients after 1991) and (2) permanent year-round rental units owned by landlords who apply for a license for property not rented prior to 1991. Owner-occupied dwellings and dwellings rented for the summer vacation period comprise over half of Wildwood's housing stock. Thus, Ordinance 265-90 has not been applied to over half of the City's housing stock.
- Census data and data from the New Jersey Department of Community Affairs show that Section 8 recipients and Hispanic households are far more likely to have children than other households in Wildwood. There are 1,869 households in Wildwood. While only 547 or 29 per cent of Wildwood households have children, 72 per cent of Hispanic households, 54 per cent of Section 8 households, and 92 per cent of Hispanic Section 8 households have children. Thus, the dwellings against which the City has enforced its ordinance have had a higher proportion of residents who are Hispanic and families with children.
- Census data shows that households with children in Wildwood tend to be larger than households without children. The City's current occupancy standards become more restrictive as the size of a household increases.
- Census data also reveals that in Wildwood, Hispanic households tend to be renter-occupied far more often than all other households. Only 8 per cent of Hispanics compared to 48 per cent of other households in Wildwood live in owner-occupied units. Thus, the dwellings against which the City has enforced its ordinance have had a higher proportion of residents who are Hispanic.
The parties desire to avoid costly and protracted litigation and agree that this dispute should be resolved without an evidentiary hearing. Therefore, the parties have waived a hearing and the entry of findings of fact and conclusions of law and have agreed to the entry of this Consent Order, as indicated by the signatures appearing below.
Therefore, it is hereby ORDERED, ADJUDGED and DECREED:
- INJUNCTIVE RELIEF
- Defendants, their agents, employees, successors, and all persons in active concert or participation with any of them in the enactment and enforcement of Wildwood's zoning and land use regulations are permanently enjoined from enforcing the square footage requirements in Section 403-11 of Ordinance 265-90.
- Defendants, their agents, employees, successors, and all persons in active concert or participation with any of them in the enactment and enforcement of Wildwood's zoning and land use regulations are permanently enjoined from engaging in any activity or practice, or from maintaining any policy or procedure, that:
- Makes unavailable or denies a dwelling unit to any person because of familial status or national origin;
- Discriminates against any person in the terms, conditions or privileges of the rental or sale of a dwelling unit because of familial status or national origin;
- Makes, prints, or publishes statements with respect to the rental or sale of a dwelling unit that indicates a preference, limitation, or discrimination based on familial status or national origin; and
- Engages in any other discriminatory housing practice prohibited by 42 U.S.C. §§ 3601, et seq.
- NONDISCRIMINATORY POLICIES AND PROCEDURES
- Within sixty (60) days of the entry of this Order, the City of Wildwood shall repeal Section 403.11, the minimum square footage requirements in ordinance 265-90, and replace it with the square footage requirements in the BOCA Code (Third Edition 1990), Sections PM-403.3 and 403.5. In those instances where the minimum square footage requirements of the BOCA Code are less stringent than those of the New Jersey State Housing Code, N.J.A.C. Subchapter 5:28-1.1 et seq., the minimum square footage requirements of the New Jersey code shall be implemented by the City.
- Before enacting or implementing any future ordinance that places any limits or restrictions other than the BOCA or the State of New Jersey's standards as described in paragraph II.A on the number or types of persons who may occupy a residential dwelling, the City of Wildwood for the duration of this Order must notify counsel for the United States of such limits or restrictions.(1)
Such notification shall include the text of the proposed amendment, showing language to he added or deleted; any documents that have been submitted to the City in support or opposition to the proposal; the date on which each projected hearing before any agency of the City with respect to the proposal is to take place; and the name, address, and telephone number of the person(s) who have made the proposal.
- The new ordinance or amendment may be effected no less than sixty (60) days after the United States is notified of the proposal, unless the United States informs the City that it has no objection to the proposal before that time. If the United States has an objection to the proposal, it may take appropriate enforcement action.
- MANDATORY EDUCATION AND TRAINING
- Within ninety (90) days after the date of entry of this Order, the City of Wildwood shall conduct and complete an educational seminar providing fair housing training to all nonclerical employees with responsibilities relating to the implementation and enforcement of all zoning, occupancy or land use regulations. At a minimum, this shall include all inspectors and persons involved with city code enforcement, zoning officers, the city engineer and business administrator, councilpersons, and the mayor. The purpose of the training is to ensure that all such officials, agents and employees of the City understand and implement the requirements of the Fair Housing Act, as amended, 42 U.S.C. §§ 3601 et seq., as well as similar state or local statues, regulations and ordinances.
The training shall be conducted by Frank Corrado, counsel representing the City of Wildwood in this litigation, or another person mutually agreed upon by the City of Wildwood and the United States. All councilpersons and the mayor shall receive four (4) hours of training. The remainder of the city employees described in this paragraph shall receive eight (8) hours of training. All persons attending the training program pursuant to the requirements of this section shall have their attendance certified in writing by the person conducting the training. Training may be accomplished by individual or group meetings. Any expenses associated with this program shall be borne by the City.
- Defendants William Gannon and Diane Tullie shall be required to attend at least sixteen (16) hours of a program of educational training concerning their responsibilities under federal, state, and local fair housing laws, regulations or ordinances. Eight (8) hours of this training may be satisfied by attending the training conducted by the City as described in paragraph III.A. The additional eight (8) hours shall be taken within thirty (30) days after the date of entry of this Consent order and shall be conducted by one of the organizations listed in Attachment A. The training shall be mandatory and any expenses associated with this program shall be borne by the City and/or the defendants. Defendants Tullie and Gannon shall have their attendance certified in writing by the person conducting the training. Training may be accomplished by individual or group meetings.
- Within fourteen (14) days after the date of entry of this Consent Order, the City shall conduct and complete the following program for all officials, agents, or employees identified in III.A to inform them of the provisions of this Order. Such program shall include:
- Furnishing to each such employee or agent a copy of this Consent Order, and informing each such person, in person, of the duties of defendants and their employees and agents pursuant to the Order; and
- Securing the signed statement appearing at Attachment B from each such employee and agent indicating that he or she has received, read, and understands this Consent Order and the policy of nondiscrimination mandated by it and further understands that violation of this order may result in sanctions against them by the defendants and/or the Court.
- For the duration of this Order, each new official, employee or agent of the City identified in paragraph III.A shall be given a copy of and required to read this Consent Order, and sign the statement appearing at Attachment B, within ten (10) days after the date he or she commences an employment or agency relationship with the defendants. For the duration of the Order, the City of Wildwood shall inform fully each new official, employee or agent identified in paragraph III.A of the City's obligations under the Fair Housing Amendments Act. That person shall sign a certification that he or she understands these obligations.
- The statements prescribed by this section of the Order shall be maintained in the office of the City Clerk for the duration of this Order.
- DESIGNATION OF MUNICIPAL FAIR HOUSING COUNSELOR
- Within sixty (60) days after the date of entry of this Consent Order, the City of Wildwood shall designate an individual to be the City's Municipal Fair Housing Counselor ("the Counselor"). The City shall ensure that the Counselor is able to converse competently in Spanish as well as English. The Counselor shall receive, investigate and resolve complaints of alleged housing discrimination within the City.
- The Counselor shall also provide counseling services for families with children and for Hispanics and other minorities who wish to move to or within Wildwood. The Counselor shall be available, if needed, to any other persons who wish to see him/her as well. The Counselor shall provide information concerning housing opportunities within Wildwood and shall be, if needed, a liaison for the homeseeker with respect to the private real estate market, the Section 8 office or the City of Wildwood.
- The Counselor shall maintain copies of this Order, copies of the Fair Housing Act, and of the portions of the City's municipal ordinance relating to occupancy of dwellings and safety requirements of dwellings. Copies of these materials are to be made freely available to anyone, upon request, without charge.
- ADVERTISEMENT OF WILDWOOD AS AN OPEN COMMUNITY
Within sixty (60) days of the date of entry of this Consent Order, the City shall design and place a poster, measuring at least 24 inches by 36 inches, in prominent and conspicuous locations in the City Municipal Building at 4400 New Jersey Avenue, Wildwood, New Jersey and at the New Jersey Department of Community Affairs, Bureau of Housing Services, which administers the Section 8 Housing Program in Wildwood. The poster shall contain the same information in both English and Spanish. The poster shall, in addition to a statement of Wildwood's promotion of equal housing opportunity, identify the office where the City's Fair Housing Counselor is located and state that anyone who feels they have been discriminated against by the City may lodge a complaint with that office or file a complaint with the United States Department of Housing and Urban Development.
- COMPENSATION OF AGGRIEVED PERSONS
- Within ten (10) days of the date of entry of this Consent order, the City of Wildwood shall pay the United States the sum of SIXTY-FIVE THOUSAND DOLLARS ($65,000.00) for the purpose of compensating all aggrieved persons of defendants, discriminatory conduct who have been identified by the United States. The United States shall determine in its sole discretion both the identity of the aggrieved individuals and the compensation each person shall receive within one hundred and twenty (120) days of the date of the entry of this order. The United States shall then direct payment to the identified individuals in the amounts determined. At that time, the United States shall provide Frank Corrado, counsel for the City, or another person mutually agreed upon by the City of Wildwood and the United States, with the list of the aggrieved persons who will be compensated by the City and the amount of compensation received by each. This list shall be confidential and shall be made available to Mr. Corrado, or another person mutually agreed upon by the City and the United States, only.
- In consideration of the City's payment, each aggrieved person receiving a share of the payment shall execute a Release of Claim Form substantially similar to that appearing in Attachment C before any distribution is made by the United States to such person. Each party shall otherwise bear its own costs to date in this action.
- Any amount of money remaining after the United States' determination of damages for aggrieved persons shall be returned to the City of Wildwood.
- CIVIL PENALTIES
The City of Wildwood shall pay as a civil penalty the sum of TEN THOUSAND DOLLARS ($10,000.00) to the United States, pursuant to 42 U.S.C. § 3614(d)(1)(C). Such payment shall be made within thirty (30) days after the date of entry of this Order.
- RECORD-KEEPING REQUIREMENTS
During the term of this Consent Order, the defendants shall:
- Maintain a log of all property maintenance code, fire code, electrical code and building code inspections of residential property conducted within Wildwood. The log shall include the date of the inspection, address of the property, name of the owner and residents of the property, officials involved in the inspection and the reason for the inspection (i.e. whether cyclical or in response to a complaint);
- Retain all property maintenance code, fire code, electrical code and building code inspection reports, irrespective of whether violations were found;
- Retain all documentation related to the occupancy of residential dwellings within the City including, but not limited to notices of violations of city or state codes, correspondence to or from the New Jersey Department of Community Affairs/Section 8 Housing Program, correspondence to landlords, residents, owners or managers of residential property, and certificates of occupancy. Such documentation shall encompass inter-office and intra-departmental memoranda, inspector notes, summary reports, records reflecting the institution and payment of fines, legal documents (i.e. summonses and court notices) and photographs; and
- Maintain a written record of all complaints related to city inspections of residential property and the manner in which the complaints were addressed or resolved. The City shall provide notification to all persons who make oral complaints of discrimination, by telephone or otherwise, that such complaints should be submitted to the City in writing for further action or that persons with a complaint may come to the Fair Housing Counselor described in paragraph IV.A to lodge a written complaint or to obtain assistance in doing so.
- Maintain all records, including but not limited to complaints of alleged housing discrimination, addressed to and by the Fair Housing Counselor described in paragraph IV.
- REPORTING TO THE UNITED STATES
- The City of Wildwood shall, no later than sixty (60) days after the entry of this Order, serve upon counsel for the United States a report evidencing their compliance with this Order. This report shall consist of the following:
- The City of Wildwood shall, no later than ninety (90) days after the entry of this Order, inform counsel for the United States of the name, address and telephone number of the Fair Housing Counselor described in paragraph IV.
- Six (6) months after the entry of this Order, and every six (6) months thereafter for four (4) years from the date of this Order, the City shall serve on counsel for the United States a written report evidencing their continuing compliance with this order during the preceding six (6) months. This report shall contain the following information:
Upon reasonable notice to counsel for defendants, representatives of the United States shall be permitted to inspect and copy all pertinent records of defendants at any and all reasonable times; provided, however, that the United States shall endeavor to minimize any inconvenience to defendants from inspection of such records.
- Any statements/certifications signed by city official, employees or agents as required by paragraphs III.A, B and C and D;
- Any written complaint made to the City, its nonclerical employees, officials and agents, including the Fair Housing Counselor described in paragraph IV.A, alleging housing discrimination by the City of Wildwood. The City shall include full details of the complaint, including the complainant's name, address and telephone number, and any action taken or proposed by the City in response to the complaint; and
- Notice of the resignation and/or hiring of all city inspectors and zoning officers.
- DURATION OF CONSENT ORDER
At any time after defendants Diane Tullie and William Gannon complete the training required under paragraph III.B, they may move for their dismissal from this action.
At any time after four (4) years from the date of the entry of this Consent Order, the City of Wildwood may move for dismissal of this case after submitting the last written compliance report required under paragraph IX.C. to the United States. Dismissal shall be granted unless, no later than ninety (90) days after receipt of the City's motion, the United States serves a written objection. If an objection is filed, the Court shall hold a hearing on the dismissal motion, and the burden shall be on the United States to demonstrate why this Order should not be terminated. If the United States fails to meet its burden, or if no objection is timely filed (except for good cause shown), this order shall terminate forthwith and this case shall be dismissed with prejudice.
- REMEDIES FOR NON-PERFORMANCE
The parties to this order shall endeavor in good faith to resolve informally any differences regarding interpretation of and compliance with this Order prior to bringing such matters to the Court for resolution. However, in the event of a failure by the defendants, whether willful or otherwise, to perform in a timely manner any act required by this Consent Order or otherwise to act in violation of any provision thereof, the United States may move this Court to impose any remedy authorized by law or equity, including, but not limited to, an order requiring performance of such act or deeming such act to have been performed, and an award of any damages, costs, and attorneys' fees which may have been occasioned by the defendants, violation or failure to perform. The Court shall retain jurisdiction to enforce the terms of this Order upon a. motion to reopen the case for such purpose.
- TIME FOR PERFORMANCE
Any time limits for performance imposed by this Consent order may be extended by mutual agreement of the parties.
ORDERED this ______ day of ______________, 1994.
Joseph E. Irenas
UNITED STATES DISTRICT JUDGE
The undersigned apply for and consent to the entry of this order:
For the United States
Isabelle M. Thabault
Jane Ryan Taylor
Jennifer C. Cass
Housing and Civil Enforcement Section
Civil Rights Division
United States Department of Justice
Washington, D.C. 20035-5998
United States Attorney
Bette E. Uhrmacher
Assistant U.S. Attorney
Chief, Civil Division
Assistant U.S. Attorney
For Defendant City of Wildwood:
Frank Corrado, Esq.
Barry & Corrado
2700 Pacific Ave.
P.O. Box 65
Wildwood, N.J. 08260-0065
For Defendant William Gannon:
Michael Pane, Esq.
307 North Main Street
Hightstown, N.J. 08520
For Defendant Diane Tullie:
Richard T. Fauntleroy, Esq.
1337 Tilton Rd., Suite 201
Northfield, N.J. 08225
Organizations offering Fair Housing training:
Ms. Lee Porter
Fair Housing Council of Northern New Jersey
131 Main Street
Hackensack, N.J. 07601
Charlotte Hollander, Esq.
Cape-Atlantic Legal Services
1 South - South Carolina Avenue
Atlantic City, N.J. 08401
On __________________, 1994, I was instructed by ______________ with respect to my responsibilities under the City of Wildwood's zoning, occupancy and land use policies and procedures and the order entered by the federal district court in United States v. City of Wildwood, et al., C.A. No. 94-1126 (JEI) (D.N.J.). I have received a copy of and have read that Order. I understand my legal responsibilities under this order and those policies and procedures, and I will comply with those responsibilities. I further understand that the Court may impose sanctions on me if I violate a provision of this order and that my employer may also discipline me if I violate a provision of that Order.
In consideration for the covenants and agreements made and reflected in the Consent Order entered in United States v. City of Wildwood, et al., C.A. No. 94-1126 (JEI) (D.N.J.), as well as in consideration of the payments required to be made thereunder, I hereby release all claims, including attorney fees, that I may have against the City of Wildwood, its employees, agents and successors arising out of, or related to the aforesaid litigation. I further understand that the release of claims shall be binding upon my heirs, successors, and any and all persons acting in concert with me.
I also acknowledge that I have had the opportunity to review the terms of this Release with an attorney of my choosing, and to the extent that I have not obtained that legal advice, I voluntarily and knowingly waive my right to do so.
STATE OF NEW JERSEY
SUBSCRIBED and sworn to before me this ______ day of _________________, 1994.
Notary Public My Commission expires:
1. All documents or other communications required by this Order to be sent to counsel for the United States shall be addressed as follows: Chief, Housing and Civil Enforcement Section, Civil Rights Division, United States Department of Justice, P.O. Box 65998, Washington, D.C. 20035-5998. > >