IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
UNITED STATES OF AMERICA,
THE CITY OF JANESVILLE, IOWA,
The United States initiated this action on November 5, 2004, to enforce the provisions of the Fair Housing Act, 42 U.S.C. §§ 3601, et seq. The United States alleges that the Defendant City of Janesville made housing unavailable on the basis of national origin, race and color in violation of Section 3604(a) of the Fair Housing Act when it decided in January, 2000 to deny the re-zoning request of private developers Cindy and Kennith Kuhr ("the Kuhrs") for the construction of "The Arbors," a 116-lot manufactured home development in Janesville.
FACTUAL BACKGROUND AND ALLEGATIONS OF THE UNITED STATES
The United States contends that were this case to proceed to trial, it would present evidence as follows:
Between 1998-2000, Kennith and Cindy Kuhr, a married couple, were seeking to become developers of a manufactured home community in Iowa. In the Spring of 1998, the Kuhrs secured an option to purchase two parcels of land, partially within and immediately outside the City of Janesville boundary, on which they planned to construct The Arbors. Under their plan, the Kuhrs would have owned and managed The Arbors, while individual home owners would have paid monthly lot rent to the Kuhrs.
In response to the proposed development by the Kuhrs, the City of Janesville passed an ordinance establishing a Planned Residential Development (PRD) District on November 2, 1998. The passage of this ordinance by the city council was unanimous. In addition, the Kuhrs requested the City annex part of the land under contract by the developers that was outside of the City limits. Again, this action was prompted by the proposed development. The vote by the city council on the annexation was three to one in favor with one council member absent. The proposed annexation was approved on June 7, 1999.
The Kuhrs' plan for The Arbors, however, required a further amendment to re-zone the property on which it would stand from Residential and Agricultural zones to the PRD District under the City's zoning ordinance. On December 6, 1999, six of the property owners whose land was located near the proposed site of the Arbors, filed a written protest with the City regarding the Kuhrs' request for re-zoning. The submission of the landowners' objection triggered the application of an Iowa state law requiring that zoning amendments be passed by a three-fourths majority, instead of a simple majority, vote of the City Council.
The City of Janesville's Planning and Zoning Commission met on October 13, November 10, and December 8, 1999, regarding the proposed re-zoning of the real estate under option by the Kuhrs and the proposed site of the development. At most, if not all, of the meetings of the Planning and Zoning Commission, Janesville area residents attended and objected to the proposed change in the zoning for numerous reasons, which the United States contends included the national origin, race and/or color of The Arbors' prospective residents.
On December 8, 1999, the City's Planning and Zoning Commission, having failed to vote on the re-zoning application, referred the matter to the Janesville City Council (hereinafter "the City Council") without recommendation.
The City Council then met and rejected the proposed re-zoning classification on January 10, 2000, by a vote of two against and three in favor of re-zoning. Melodie Despard and Tracy Meyer voted against the re-zoning request. As a result of the City's action, the Kuhrs did not purchase land in Janesville for a manufactured home development and The Arbors was not constructed.
The United States contends that the foregoing supports a finding by the Court that the City violated the Fair Housing Act when it denied the Kuhrs' re-zoning request on the basis of the national origin, race and/or color of the prospective residents of The Arbors, in violation of 42 U.S.C. §3604(a).
The City has denied and continues to deny any racial motivation or improper motives. The City contends that the reason the project in question was not supported was for legitimate/nondiscriminatory reasons. While the City is prepared to defend this action through litigation, the City realizes that such litigation will be expensive. The City prefers to use its resources in more productive endeavors. Accordingly, the City waives service of the summons and complaint in this action.
The United States also desires to avoid costly and protracted litigation and agrees that the claims against Defendant should be settled and resolved without litigation. The United States believes that the allegations in its Complaint justify the remedies agreed to by the parties and set forth below. Therefore, Defendant and the United States have agreed to the entry of this Consent Decree:
IT IS HEREBY AGREED AND ORDERED AS FOLLOWS:
1. The following terms when used in this Consent Decree, in addition to terms defined elsewhere in the Decree, shall have the following meanings:
- "The City of Janesville," and "the City" refer to the employees, appointed and elected officials, officers, agents, and any and all persons or entities acting in concert or participation with the City of Janesville;
- "Effective Date of the Decree" refers to the date the Court enters the Consent Decree;
- "Affordable Housing" refers to housing units that households earning less than 80% of the Area Median Income can afford without spending more than 30% of their household income on housing costs; and
- "Multi-family Housing" refers to: buildings containing more than four (4) units of housing; and mobile or manufactured home developments that include sites for more than four (4) homes.
II. GENERAL NONDISCRIMINATION PROVISIONS
2. Defendant shall not take any action that unlawfully:
- denies or otherwise makes unavailable a dwelling because of national origin, race or color;
- discriminates in the terms, conditions or privileges of the sale of a dwelling, or in the provision of services or facilities in connection therewith, because of national origin, race or color;
- coerces, intimidates, threatens, or interferes with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right protected by the Fair Housing Act;
- interferes with the development or construction of any Affordable Housing development or Multi-family Housing because of the national origin, race or color of its prospective residents; or
- discriminates on the basis of national origin, race or color in its enforcement of Iowa law relating to land use and/or zoning ordinances and regulations.
III. ZONING ORDINANCE AND RE-ZONING APPLICATION PROCESS
3. The City agrees that Section 17.09 of Ordinance #220 of its Code of Ordinances be changed to provide that the super-majority requirement is only triggered when the Planning and Zoning Commission votes against a re-zoning request. In the event the Planning and Zoning Commission simply fails to act, takes no position, or there is a tied vote on the proposed re-zoning and sends the matter to the City Council, the simple majority requirement, absent the filing of any petition and protest shall only be required. In this connection, the City of Janesville agrees to prepare and pass modifications to its existing Ordinance No. 220 amending the City's code of ordinances as required by this provision within sixty (60) days of the date of entry of this Decree.
IV. FAIR HOUSING TRAINING
4. Within ninety (90) days of the entry of this Decree, the Defendant shall provide training with respect to the requirements of the Consent Decree and the Fair Housing Act for all members of the Janesville City Council, all members of the Janesville Planning and Zoning Commission, the Mayor, the City Clerk and staff personnel at the City Clerk's office, and the Public Works Director, as described below:
- The training shall be conducted by a qualified third party, unconnected to Defendant or its employees, officials, agents or counsel, and any expenses associated with this training shall be borne by Defendant. Defendant shall notify the United States of the name, address and professional background of the trainer the City selects at least thirty (30) days in advance of each such training. The United States may object to the trainer the City selects within ten (10) days of receipt of the notice, in which case the City shall select an alternate trainer acceptable to the United States. If no objection is received by the City, the trainer so selected shall stand approved;
- The trainer shall, among other things, distribute to each trainee a summary of the provisions of this Consent Decree. The amount of the specific monetary compensation provided by this settlement need not be included in the summary;
- Defendant shall provide to the United States within thirty (30) days of the training, certifications executed by all persons described above confirming their attendance, including the date of the training.
- In the event there is a change in personnel in the elected or appointed positions listed in this paragraph, new employees, appointees and officials shall receive the training required by this Decree, within one (1) year of assuming their position(s) or office(s).
- Notwithstanding the provisions of this paragraph, the current Mayor of the City of Janesville may attend the Fair Housing training at his option.
V. FAIR HOUSING OUTREACH PLAN
5. The City shall undertake a Fair Housing Outreach Plan to inform Multi-family Housing developers and the general public that the City supports the development of Affordable Housing and Multi-family Housing opportunities in the City of Janesville and its surrounding communities.
6. Within ninety (90) days of the Effective Date of the Agreement, the City shall submit to the United States for approval a Fair Housing Outreach Plan. If the United States does not object to the Plan within ten (10) days of receipt, the City shall immediately proceed to implement the Plan. The City shall include in the Fair Housing Outreach Plan the following:
- a description of the specific outreach activities the City will undertake, entities the City will contact, and materials the City will use to:
- encourage Multi-family Housing developers to construct Affordable Housing and Multi-family Housing in Janesville; and
- advertise Affordable Housing and Multi-family Housing opportunities in Janesville; and
- a description of how the marketing activities will reach:
- employees and parents of students of the Janesville Public School;
- non-profit organizations providing housing counseling, regional and local housing development groups, and other social services organizations throughout Black Hawk and Bremer Counties;
- fair housing and other civil rights organizations in Black Hawk and Bremer Counties;
- local and regional employers situated within fifty (50) miles of Janesville. For this purpose, the United States shall, within thirty (30) days of the Effective Date of the Agreement, provide the City with a list of up to fifteen (15) employers that it must include in its housing outreach efforts;
- a description of the specific steps the City will take to seek federal, state and/or local funding for the development of Affordable Housing in Janesville and to provide incentives for developers who want to build Affordable Housing in Janesville; and
- a timetable for implementation of each specific activity.
7. The City's Fair Housing Outreach Plan shall, among other outreach activities, require the City to:
- identify and provide contact information, including a telephone number, for a City employee whom prospective developers can contact if they want information regarding housing development opportunities in or near the City;
- prepare and post electronically on the City's website a list of vacant land available and appropriately-zoned for residential, multi-family use. This list shall be posted continuously and updated every three (3) months and shall be included in written materials, which shall be distributed according to the City's Marketing Plan;
- prepare and post electronically a list of Multi-family Housing located in the City. This list shall be posted continuously and updated every three (3) months and shall be available to the public in writing upon request. The publication shall include the addresses, telephone numbers, numbers of bedrooms, and other features of the Multi-family Housing; and
- For purposes of compliance with this paragraph, the City shall post the vacant land and Multi-family Housing lists on the website www.waverlyia,com, or use another available City website.
VI. COMPLIANCE8. Within thirty (30) days of the Effective Date of the Decree, Defendant shall designate a City employee or official to receive complaints of alleged housing discrimination against the City, and coordinate the City's compliance with this Decree. The designated person shall maintain copies of this Consent Decree, the HUD Complaint form and the HUD pamphlet entitled "Are you a victim of housing discrimination?" (HUD official form 903 and 903.1, respectively) and make these materials freely available to anyone, upon request, without charge, including all persons making housing discrimination complaints to the City. Defendant shall notify the United States of the name, address, telephone number and title of the designated person.
9. For the duration of the Decree, Defendant shall prepare and submit to the United States biannual reports that detail all actions it has taken to fulfill its obligations under the Consent Decree. Defendant shall submit its first Compliance Report to the United States six months from the date of entry of the Decree, and subsequent reports every six (6) months thereafter for the duration of the Decree, except that the final report shall be delivered to the United States not less than sixty (60) days prior to the expiration of this Decree.
10.Defendant shall include the following information in the Compliance Reports:
- the name, address, and title of the City employee or official who is serving as the designated person under Paragraph eight (8), above;
- copies of the training certification forms signed since the last report;
- any written complaint received since the last report alleging discrimination related to residential land use and zoning practices by Defendant. Defendant shall indicate any action it has taken in response to the complaint, and shall include all pertinent documents, such as a copy of the complaint, any documents filed with the complaint, and any written response to the complaint by Defendant;
- the identity of each applicant for a re-zoning amendment or petitioners for land annexation (for the purpose of Multi-family Housing development) filed with the City's Planning and Zoning Commission since the last report with the: applicant's name; applicant's current street address; street address of the proposed development; City's Planning and Zoning Commission's staff recommendation stating whether the applicant meets all the technical requirements set forth in the City's ordinances and whether the staff recommends any conditions regarding the application; disposition of the application by the Commission and/or the City Council, including how each Commissioner or Council Member voted on the application; and the disposition of the application by the Commission or City Council, if any;
- all documents presented in support of oral testimony offered by the public at the Commission or City Council hearing(s) for applications that are denied by the Commission or City Council; and
- minutes of any and all public hearings held regarding each re-zoning application, Planned Residential Development request, and annexation request that is denied by the Commission or City Council, in all cases in which such application or request was made for the purpose of developing Multi-family Housing in the Janesville City area.
11. Defendant shall maintain all records relating to the implementation of, and compliance with, all provisions of this Decree, including, but not limited to, all records related to re-zoning applications for the duration of the Consent Decree. The United States shall have the opportunity to inspect and copy any records maintained as required by this Decree after giving reasonable notice to Defendant.
VII. MONETARY DAMAGES AND CIVIL PENALTY
12. Pursuant to 42 U.S.C. §3614(d), within ten (10) days after the Effective Date of the Decree, the Defendant shall pay monetary damages by forwarding to the United States a check payable to Kennith and Cindy Kuhr in the amount of $45,000. In consideration for said monetary damages, the Kuhrs shall sign the release attached to this Decree as Attachment A prior to receiving payment.
13. Within ten (10) days after the Effective Date of the Decree, Defendant shall deliver to the United States a check for $10,000 made payable to the United States Treasury as a civil penalty under 42 U.S.C. §3614(d)(1)(C).
VIII. DURATION OF DECREE
14. The Court has personal jurisdiction over the Defendant for purposes of this civil action, and subject matter jurisdiction over the claims in this action under 28 U.S.C. §§ 1331 and 1345, and 42 U.S.C. § 3614(b).
15. The Court shall retain jurisdiction for the duration of this Consent Decree to enforce the terms of the Decree, after which time the case shall be dismissed with prejudice. The United States may move the Court to extend the duration of the Decree in the interests of justice.
16. This Consent Decree shall remain in effect for four (4) years from the Effective Date of the Decree in order to provide the Defendant with sufficient time to implement the policies and procedures required by this Decree.
17. The parties and their attorneys agree to work cooperatively with one another and in good faith. They further agree to use their best efforts to effectuate the purposes of the Decree and to resolve informally any differences regarding interpretation of, and compliance with, the Decree prior to bringing such matters to the Court for resolution.
18. The parties shall have the right to seek from the Court modifications of the Consent Decree to ensure that its purposes are fully satisfied, provided that any request for a modification has been preceded by good faith negotiations between the parties and is based upon an unforeseen inability to perform or a material and substantial change in circumstances.
IX. TIME FOR PERFORMANCE
19. Any time limits for performance imposed by this Consent Decree may be extended by mutual written agreement of the parties.
THE PARTIES CONSENT TO THE ENTRY OF THIS CONSENT DECREE AS INDICATED BY THE SIGNATURES OF COUNSEL BELOW:
FOR PLAINTIFF UNITED STATES:
Charles W. Larson, Sr.
United States Attorney
Northern District of Iowa By:___________________________
Stephanie J. Wright
Assistant U.S. Attorney
Post Office Box 74950
Cedar Rapids, IA 52407-4950
Assistant U.S. Attorney
Office of the United States Attorney
Cedar Rapids, Iowa 52401
(319) 363-0091 (phone)
(319) 363-1990 (fax)
R. Alexander Acosta
Assistant Attorney General
Steven H. Rosenbaum
Keisha Dawn Bell
Lori K. Wagner
U.S. Department of Justice
Civil Rights Division
Housing & Civil Enforcement Section Mailing Address:
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530-5998
1800 G Street, N.W.,
Washington, D.C. 20006
Telephone: (202) 305-3107
Facsimile: (202) 514-1116
FOR DEFENDANT CITY OF JANESVILLE:
| ________________________ |
Kevin R. Rogers, Esq.
Swisher & Cohrt, P.L.C.
528 West Fourth Street
Waterloo, Iowa 50701
P.O. Box 1200
Waterloo, Iowa 50704-1200
Telephone: (319) 232-6555
Facsimile: (319) 232-4835
Gary J. Boveia, Esq.
City of Janesville Attorney
Boveia Law Firm
208 First Avenue, S.E.
Waverly, Iowa 50677-5900
P.O. Box 691
Waverly, Iowa 50677-5900
Telephone: (319) 352-5900
Facsimile: (319) 352-2500
It is ORDERED this ___ day of November , 2004.
United States District Court Judge
Northern District of Iowa
Document Filed: November 5, 2004