In The United States District Court For The Southern District Of Georgia Savannah Division

UNITED STATES OF AMERICA,

          Plaintiff,

v.                                                       CIVIL ACTION NO. CV401-263

THE CITY OF POOLER, GA

          Defendant.

The United States initiated this action on November 13, 2001, to enforce the provisions of the Fair Housing Act, 42 U.S.C. §§ 3601, et seq. The United States alleges in its Complaint and Amended Complaint that the Defendant, the City of Pooler, intentionally discriminated on the basis of race or color in violation of the Fair Housing Act by refusing to permit and opposing the construction of 68-units of elderly low-income tax credit rental housing in Pooler, Georgia because it believed that the development would attract black residents. The United States alleges in its Complaint and Amended Complaint that the City's conduct made housing unavailable and denied dwellings to persons because of race or color in violation of 42 U.S.C. § 3604(a) and interfered with persons in the exercise or enjoyment of, or on account of having exercised or enjoyed, or on account of having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by 42 U.S.C. § 3604, in violation of 42 U.S.C. § 3617, thereby denying to a group of persons rights granted by the Fair Housing Act and raising an issue of general public importance, pursuant to 42 U.S.C. § 3614(a). The United States believes that the allegations in the Complaint and Amended Complaint justify the remedies agreed to by the parties and set forth below.

The City of Pooler 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/non-discriminatory 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. Therefore, the City and the United States have agreed to resolve this matter as set forth below.

The City and the United States desire to avoid costly and protracted litigation and agree that this action should be compromised, settled and resolved without further litigation. Nothing in this agreement is or will be construed as an admission of any wrongdoing by the City of Pooler. Therefore, the City and the United States have agreed to the entry of this Settlement Agreement and Dismissal Order ("Agreement and Order") regarding claims against the City.

IT IS HEREBY AGREED AND ORDERED AS FOLLOWS:

1. The following terms when used in this Agreement and Order, in addition to terms defined elsewhere in the Agreement and Order, shall have the following meaning:
   1. "Affordable Housing" refers to housing units that households earning less than 80% of the Area Median Income can rent without spending more than 30% of their income on rent;
   2. "the City" and "the City of Pooler" refer to the City of Pooler, its employees, elected or appointed officials, officers, agents, and any and all persons or entities acting in concert or participation with the City of Pooler;
   3. "DCA" refers to the Georgia Department of Community Affairs;
   4. "Effective Date of the Agreement and Order" refers to the date the Court enters the Agreement and Order;
   5. "Elderly Household" refers to a household in which the head of household is at least 62 years of age;
   6. "Annual Gross Income" refers to the definition used by the LIHTC program;
   7. "LIHTC" program refers to the federal Low Income Housing Tax Credit program;
   8. "Area Median Income" refers to the definition used by the LIHTC program;
   9. "Net Residential Land Area" refers to the definition in the Chatham County Zoning Ordinance;
   10. "QAP" refers to the State of Georgia Qualified Allocation Plan for Low Income Housing Tax Credits; and
   11. "Scoring Criteria" refers to the criteria detailed in the QAP by which points are assigned for the purpose of ranking the LIHTC applications and providing the basis upon which DCA offers funding to applications.
   II.
   JURISDICTION AND SCOPE
2. The Parties stipulate and the Court finds that the Court has personal jurisdiction over the City for purposes of this civil action, and subject matter jurisdiction over the claims in the civil action pursuant to 28 U.S.C. §§ 1331 and 1345, and 42 U.S.C. § 3614(a). The United States and the City are bound by the terms of this decree.
3. The provisions of this Agreement and Order apply to the City of Pooler, its employees, elected or appointed officials, officers, agents, and any and all persons or entities acting in concert or participation with the City of Pooler.
4. This Agreement and Order shall remain in effect until whichever one of the following occurs first:
   1. four full LIHTC application cycles from the date of entry of this Agreement and Order, or
   2. the provisions of Section IV of the Agreement and Order have been fully implemented, and construction of the 68 units covered by this Agreement and Order is completed and either 1) a certificate of occupancy has been issued for all 68 units or 2) the 68 units reach Stabilization as defined by the LIHTC program.
5. The Court retains jurisdiction over the action for the duration of this Agreement and Order for the purpose of enforcing any of its provisions and terms.
6. The parties agree to work cooperatively with one another and in good faith and agree to use their best efforts to effectuate the purposes of the Agreement and Order and to resolve informally any differences regarding interpretation of and compliance with the Agreement and Order prior to bringing such matters to the Court for resolution. Throughout this Agreement and Order, where there are references to an objection by the United States, any such objection shall be resolved in accordance with this paragraph 6.
7. The parties shall have the right to seek from the Court relevant modifications of the Agreement and Order 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. The parties may agree in writing to modify the deadlines established by this Agreement and Order without Court approval.
   III.
   GENERAL NONDISCRIMINATION PROVISIONS
8. In accordance with the laws of the United States, the City agrees that it will not:
   1. deny or otherwise make unavailable a dwelling because of race or color;
   2. discriminate in the terms, conditions or privileges of the sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race or color;
   3. coerce, intimidate, threaten, or interfere 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;
   4. interfere with the funding, development or construction of any Affordable Housing because of race or color; or
   5. discriminate on the basis of race or color in any aspect of the administration of its zoning process relating to residential property.
   IV.
   DEVELOPMENT OF 68 LOW INCOME HOUSING
   UNITS IN POOLER FOR ELDERLY HOUSEHOLDS
9. The City shall use its best efforts to ensure the construction of 68 new rental housing units in the City of Pooler for Elderly Households whose Annual Gross Income is 50% or less of the Area Median Income. The gross rents for these units will be consistent with gross rents permitted by the LIHTC program for persons earning 50% or less of the Area Median Income. The units created pursuant to this Agreement and Order shall be located in the City of Pooler, Georgia on a site to be agreed upon by both parties. The City's obligation to use its best efforts shall continue throughout the term of this Agreement and Order.
10. The City shall use its best efforts to seek financial assistance from the Georgia DCA LIHTC program for construction of the 68 units, beginning with the year 2004 competition, at the latest, and continuing through the year 2007 competition, or until construction of the 68 units is funded, whichever is earlier.
11. As part of its best efforts, during each of the four LIHTC program competition years, or until the 68 units are awarded tax credits, the City, on behalf of the applicant whose application the City selects pursuant to the criteria specified in this Agreement and Order, shall pay the Georgia DCA application fee, up to $6,000.00 per competition year.
12. As part of its best efforts, for each of the LIHTC applications selected by the City pursuant to paragraph 17, below, the City shall adopt a resolution of support for the proposed development that will maximize the point score under the relevant Scoring Criteria (such as Local Government Support) in the QAP for the applicable application cycle. The City shall provide the resolution to the selected applicant in time to be included in that year's LIHTC application. The City shall, in its resolution, clearly express its support for the proposed development as opposed to expressing neutrality, and shall clearly indicate that it understands the nature of the proposed development by identifying, at a minimum, the type of project, the number of anticipated units, and the specific project location.
13. As part of its best efforts, for each year that an application to construct the 68 units that is covered by this Decree is filed with DCA, the City shall provide financial support to meet the minimum DCA percentage required to obtain the maximum number of points pursuant to the Georgia DCA's scoring criterion for Government Financial Assistance. However, the City is not obligated to make a financial contribution of more than $425,000.00. Of the City's required financial contribution, the total cash grants are not required to exceed $200,000.00 in the first year of application, $225,000.00 in the second year of application, $250,000.00 in the third year of application, and $275,000.00 in the fourth year of application. The City may, in its discretion, satisfy all or any part of its total financial contribution by making a variety of different types of contributions, including, but not limited to waiving water and sewer tap fees, waiving building permit fees, foregoing real property taxes during construction, contributing land for project development, providing below market rate construction or permanent financing, providing an abatement of real estate taxes, providing other project operational cost subsidies, or making other financial contributions. However, each type of contribution must qualify as a financial contribution under the Government Financial Assistance criterion listed in the QAP for the applicable LIHTC application cycle. The City's financial contribution toward total development costs for the purpose of compliance with the Agreement and Order shall not include fees or other expenses incidental to completing an application for funding, as set forth in paragraph 11, above, nor shall it include the cost of transportation services, as set forth in paragraph 15, below. The validity of the City's financial contributions is not dependent upon the DCA's decisions regarding funding of an application that the City has supported.
14. As part of its best efforts, the City shall work in good faith with the applicant that it selected pursuant to the criteria specified by this Agreement and Order, to ensure issuance of all required land disturbance permits, building permits, and zoning and land use text amendments for the proposed development in time for inclusion in that year's LIHTC application, and to ensure that the building permit is dated appropriately to allow construction to commence within a time frame that allows for completion in accordance with DCA requirements.
    1. The City shall work in good faith with the applicant to ensure that all documentation is received and all fees are paid or waived to allow construction to commence as indicated on the permits, and shall supply the applicant with a letter from the City, in time for inclusion in that year's LIHTC application, so indicating. The City shall reference in the letter the project name, address, and number of units.
    2. The City shall work in good faith with the applicant to ensure that the site development plan conforms with the zoning of the proposed development site, and shall provide the applicant with a letter from the City, in time for inclusion in that year's LIHTC application, so confirming. The City shall include in the letter the zoning and land use classification of the property and a clear explanation of the requirements of those zoning and land use classifications.
    3. The City shall work in good faith with the applicant to issue its permits, zoning text amendments, and letters to the applicant in a manner that meets the threshold requirements in the QAP for the applicable application cycle, and maximizes the point score under the relevant Scoring Criteria (such as Readiness to Proceed) in the QAP for the applicable application cycle.
15. As part of its best efforts, for as long as the City maintains transportation for its senior citizens to the Senior Citizen Center, the City shall take reasonable steps to make this transportation available for elderly persons residing in the 68 unit development. These steps shall be designed to maximize the point score under the relevant Scoring Criteria (such as Supportive Services for Elderly Households) in the QAP for the applicable application cycle.
16. As part of its best efforts, the City shall solicit a developer to construct the 68 units covered by the Agreement and Order by doing the following on or before November 1 of each year of this Agreement and Order, or until an application to construct the 68 units, as required by this Agreement and Order, is awarded tax credits:
    1. make a public posting of a list of at least five parcels of vacant land that are viable construction sites, pursuant to criteria established by the Georgia DCA, and legally suitable for the development of multi-family housing;
    2. publish a Request for Proposal (RFP) seeking a developer who will submit, with the City's support and financial assistance, an application to the Georgia DCA for LIHTC to construct 68 units of low-income senior housing upon one of the sites as identified pursuant to sub-paragraph (a) above;
    3. provide written notice and instructions for obtaining a copy of the RFP, as set forth in sub-paragraph (b) above, to each developer who submitted a LIHTC application to the Georgia DCA during the previous year's application cycle;
    4. the City shall not be required to support any application that proposes a site that is not located on one of the five sites designated by the City; and
    5. the City shall not be required to support an application that does not comply with reasonable deadlines set by the City in the RFP. (The City may set deadlines for applications requiring that all applications must be submitted to the City pursuant to the RFP during the following time period: 120 days after the RFP is published and 60 days prior to the DCA application deadline.)
17. As part of its best efforts, the City shall select a qualified LIHTC program applicant and proposed development project to support pursuant to this Agreement and Order which meet all LIHTC program eligibility requirements, threshold requirements (including owner, developer, and management company experience requirements), and all other requirements and policies for the applicable application cycle. This includes all requirements and policies established by DCA in the QAP for the applicable application cycle (including site and construction requirements).
18. As part of its best efforts, the City shall select a qualified applicant and proposed development project to support for funding through the LIHTC program that will maximize the applicant's point score under the Scoring Criteria in the QAP for the applicable application cycle (including in the categories of Project Characteristics and Project Locational Characteristics).
19. Each year, at least twenty-one (21) days before the City selects an applicant and proposed development plan to support pursuant to the terms of this Agreement and Order, the City shall notify the United States of the name and address of all proposed project participants, such as the owner, general partner, developer, management company, and syndicator proposed to be involved with the project. If the United States does not object to a proposed participant within seven (7) days, the City shall proceed with its selection process. The United States may object only to advance the goals of this Agreement and Order and the Fair Housing Act.
20. If an LIHTC application that was supported by the City pursuant to the terms of this Agreement and Order is not awarded tax credits, the City shall meet with the United States in the City or, at the United States' discretion, via telephonic conference, within thirty (30) days of the release of the QAP for the subsequent year's competition, to discuss potential improvements that would make the LIHTC application for the subsequent year more competitive. In order to advance the goals of the Agreement and Order, if the first LIHTC application supported by the City is not awarded tax credits, the United States may for all subsequent applications choose to review more closely any further steps taken by the City pursuant to this Agreement and Order.
    V.
    OCCUPANCY OF 68 LOW INCOME HOUSING
    UNITS IN POOLER FOR ELDERLY HOUSEHOLDS
21. The City shall condition its support for a developer's application for subsidy to construct the 68 units covered by this Agreement and Order on a written agreement with the developer that:
    1. the 68 units will be made available for rental to all who qualify by way of age and income on a nondiscriminatory basis;
    2. current or prior residency in the City of Pooler shall not be a requirement, priority, penalty or preference to rent any of the 68 units;
    3. procedures for the initial rental of the 68 units will not create a preference for current residents of Pooler (e.g., a first-in-time rule, a requirement that applications be picked up or submitted in person), but will be based upon random selection methods, such as a lottery or other method of anonymous drawing;
    4. the developer will give reasonable advance notice of the availability and application process for occupancy of the 68 units, and that such notice is designed to reach as many Elderly Households throughout Chatham County as possible; and
    5. the 68 units covered by this Agreement and Order will be made available, as required by law, to Elderly Households possessing a Section 8 Rental Assistance Voucher and that no applicant possessing such a Voucher will be denied a unit unless that applicant fails to meet the minimum requirements applied to all lease holders. The agreement shall require that all lease provisions are compatible and not in conflict with Section 8 Voucher program requirements, that the tenant application process is structured to prevent discrimination against persons holding Section 8 Vouchers, and that no actions are taken to discourage Section 8 Rental Assistance Voucher holders from applying for units.
22. The City's plan for compliance with this Section must be submitted to the United States, as set forth in paragraph 35 below. If the United States does not object to the plan for compliance within ten (10) days, the City shall proceed with its plan.
    VI.
    ZONING ORDINANCE
23. For the duration of this Agreement and Order, the City shall not amend or revise its Zoning Ordinance to establish a minimum floor area requirement or decrease the number of residential units per acre or maximum height for buildings in R-3A, R-3B and R-3C zoning districts. Nothing herein will be construed to limit or restrict the City in making zoning decisions about specific parcels of property.
    VII.
    HOUSING MARKETING PLAN
24. For the duration of this Agreement and Order, the City shall undertake a Housing Marketing Plan to inform multi-family housing developers and the general public that the City supports the development of Affordable Housing opportunities in the City of Pooler.
25. Within ninety (90) days of the Effective Date of the Agreement, the City shall submit to the United States for comments a Housing Marketing Plan. If the United States does not object to the Plan within thirty (30) days, the City shall immediately proceed to implement the Plan. The City shall include in the Housing Marketing Plan the following:
    1. 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 in Pooler;
    2. a description of the specific outreach activities the City will undertake, entities the City will contact, and materials the City will use to advertise Affordable Housing opportunities in Pooler;
    3. a description of how the marketing activities will reach:
       1. employees and parents of students of Chatham County public schools located in Pooler;
       2. non-profit organizations providing housing counseling services to the elderly and others throughout Chatham County; and
       3. fair housing and other civil rights organizations in Chatham County.
    4. a timetable for implementation of each specific activity.
    VIII.
    FAIR HOUSING TRAINING
26. The City shall have a fair housing training program for all officials and City employees who have duties related to the planning, zoning, permitting, construction, or occupancy of residential housing. The primary purpose of this training program is to educate those persons with respect to the requirements of this Agreement and Order and the Fair Housing Act.
27. The City shall within thirty (30) days of the Effective Date of the Agreement and Order designate to the United States an entity that has experience providing fair housing training to conduct the training described in the preceding paragraph. If the United States does not object to the proposed entity within ten (10) days of the designation the City shall proceed to arrange for training conducted by the proposed entity.
28. Each year, at least one time per calendar year for the duration of this Agreement and Order, the City shall provide in-person training of the requirements of the Fair Housing Act. All appointed officials and employees covered by paragraph 26 of this Agreement and Order shall be required to attend the in-person training within the first year after the Effective Date of this Agreement and Order. All newly hired appointed officials and employees covered by paragraph 26 of this Agreement and Order shall be required to attend the in-person training within one year. The City shall make in-person training available to officials elected after the Effective Date of this Agreement and Order. Nothing in this section requires anyone to attend more than one (1) in-person training as required by this paragraph.
29. Each person who attends an in-person training session shall sign a form attesting to the fact that he or she completed the training and the date on which it was completed.
30. In the interim period between the in-person training sessions conducted pursuant to this Agreement, the City shall distribute to each person newly hired, appointed, or elected to a position covered by paragraph 26 of the Agreement and Order, within thirty (30) days of each such person's commencement date, written materials explaining the requirements of the Fair Housing Act. The City shall include in the written materials a copy of this Agreement and Order and the Housing Marketing Plan.
31. Pursuant to Section IX of this Agreement and Order, all training certification forms referenced in this Section shall be maintained by the City for the duration of this Agreement and Order and made available upon request for inspection by the United States.
    IX.
    COMPLIANCE
32. For purposes of the compliance with this Agreement and Order, the United States, where an objection is permitted, may do so only to advance the remedial goals of this Agreement and Order and the Fair Housing Act.
33. The City shall designate a City employee or official as its Fair Housing Compliance Officer (FHCO) to receive complaints of alleged housing discrimination against the City, educate the City and its employees on fair housing, and coordinate the City's compliance with this Agreement and Order. The FHCO shall maintain copies of this Agreement, 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 fair housing complaints to the Fair Housing Compliance Officer. During the term of this Agreement, the FHCO shall report every three months to the City on his or her activities taken in compliance with the Agreement and Order. The City shall, in the first Compliance Report as set forth in paragraph 35, below, notify the United States of the name, address, and title of the FHCO.
34. Marketing and Allocation Plan. Within sixty (60) days of securing funding for construction of the 68 units, the City shall submit to the United States for comment its Marketing and Allocation Plan for the 68 units required by the Agreement and Order. If the United States does not object to the Plan within thirty (30) days, the City shall immediately begin to implement the Plan. The City shall include in the Plan:
    1. the procedures the City and other relevant participants will employ to ensure that the newly created units will be available to all eligible persons on a nondiscriminatory basis;
    2. a description of the manner in which the units will be advertised and allocated as they become available;
    3. a description of how the marketing activities will reach eligible persons;
    4. a timetable for implementation of each specific activity;
    5. the name, address, and title of the City employee or official who will serve as point of contact for marketing and allocating the units;
    6. the name and address of any participant who will advertise and/or allocate the units; and
    7. a copy of any agreement(s) between the City and any participant regarding marketing, allocation, and occupancy of the units.
35. Compliance Reports. The City shall prepare biannual reports for the first year of the Agreement and Order, and annual reports thereafter, that detail the actions it has taken to fulfill the terms of the Agreement and Order. For the first year, the City shall submit its Compliance Report to the United States no later than April 15th and October 15th. The City shall submit the first Compliance Report on the first of these dates that follows the Effective Date of the Agreement and Order. The City shall submit the third Compliance Report one year after the second, and shall submit a Compliance Report every year thereafter for the remaining term of the Agreement and Order. The City shall include the following information in the Compliance Reports:
    1. the name, address, and title of the City employee or official who will serve as the FHCO;
    2. any steps that the City or a participant has taken in support of the development project required by this Agreement and Order;
    3. any agreement between the City and a participant regarding any aspect of the Agreement and Order, including planning, development, construction, marketing, or occupancy of the 68 units;
    4. any steps that the City or a participant has taken toward marketing or occupancy of the 68 units required by this Agreement and Order, including specific marketing activities; the number of households that have occupied any of the 68 units and the prior address of each household; the name and address of each entity that will engage or assist in marketing or otherwise servicing the 68 units, the date when said units will be ready for occupancy, the date when said units are expected to reach Stabilization, and the date said units in fact reach Stabilization;
    5. any multi-family housing that has been newly created or proposed in Pooler during the preceding quarter, and whether such housing includes any Affordable units. This notification shall identify: (i) the name, address, and telephone number of the entity creating or proposing the housing; (ii) the nature of the housing or proposed housing, including whether the housing is or would be Affordable; and (iii) the disposition of the proposal, including whether the proposal was not recommended or disapproved by the City or its agents or employees, whether by way of zoning, building permits, or otherwise. The City shall maintain all records relating to these proposals for at least the duration of this Agreement and Order; and
    6. any written complaint alleging discrimination by the City related to land use and zoning. The City 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 the City.
36. Within three (3) months after the Effective Date of the Agreement and Order, the parties shall meet in the City or, at the United States' discretion, via telephonic conference, to discuss the progress in complying with the provisions of this Agreement and Order. Thereafter, the parties shall hold such meetings biannually for the duration of the Agreement and Order.
37. For the duration of this Agreement and Order, the City shall maintain all records relating to implementation of and compliance with all provisions of this Agreement and Order. The United States shall have the opportunity to inspect and copy any records maintained as required by this Agreement and Order after giving reasonable notice to the City.
    X.
    MONETARY RELIEF
38. The parties will submit this Agreement and Order to the Court only after the United States receives payment to Jerry Wilson Braden issued by the Georgia Interlocal Risk Management Agency ("GIRMA") in the amount of $25,000.00 for reimbursement of expenses and after the United States receives a signed release of all claims, in the form attached to this Agreement and Order as Attachment B, signed by Jerry Wilson Braden and any of his companies and partnerships that have or had claims in this action.

THE PARTIES CONSENT TO THE ENTRY OF THIS SETTLEMENT AGREEMENT AND DISMISSAL ORDER AS INDICATED BY THE SIGNATURES OF COUNSEL BELOW:

FOR PLAINTIFF UNITED STATES:

FOR DEFENDANT CITY OF POOLER:

ORDERED this _______day of _______________ , 2003.