In NY, a 10-year legal battle seeks to pry open door to fair housing

by @etammykim December 21, 2015 5:00AM ET

A lawsuit out of small-town Long Island could shape future zoning laws and efforts at racial desegregation

Diane Goins, a longtime activist and elder-care nurse, lives in an apartment in Hempstead, New York, a Long Island village whose population is nearly all African American and Latino.
Yana Paskova for Al Jazeera America

GARDEN CITY, N.Y. — An hour’s drive east of New York City, the skyline quiets and a pristine town appears, as if out of a postcard. The Village of Garden City, in Nassau County, Long Island, is a well-heeled bedroom community of some 23,000 residents. According to an official brochure, it was founded in 1869 by Alexander Turney Stewart, a “merchant millionaire” intent on creating “a place that embodied his ideals, his wisdom and his wealth,” “with wide avenues, hundreds of trees and shrubs, [and] sixty well-built homes on spacious lots.”

To walk or drive through Garden City is to see this ideal on full display. The streets and buildings are invariably tidy, the cars shiny and new. In mid-November, a landscaping crew was at work downtown, trimming trees. A municipal leaf shredder made its rounds to slant-roofed colonials and luxury condominiums, sweeping up thousands of yellow shards.

But this tranquil scene obscures a long-running clash over access to housing. More than a decade ago, a nonprofit property developer and a civil rights group in Hempstead — a neighboring village with high rates of poverty — sued Garden City and Nassau County for race discrimination under the Fair Housing Act of 1968 and the Equal Protection Clause of the U.S. Constitution. The Mutual Housing Association of New York, or MHANY, and New York Communities for Change, or NYCC, alleged that Garden City, whose population is 93 percent white, had maintained its founder’s vision by preventing minorities from moving in. Officials had used zoning laws to deprive blacks and Hispanics of the chance to enjoy decent homes, schools and roads in “one of the most segregated counties in the entire United States,” plaintiffs told the court. The village insisted that its policies were based only on concerns over traffic, taxes and school enrollment. Nassau County said it had no control over zoning.

The adjacent villages of Garden City and Hempstead are located in Nassau County, Long Island, just east of New York City.
Joanna S. Kao

In 2013, a federal judge agreed with the plaintiffs. While the village’s zoning plan was not blatantly discriminatory, the judge said, it caused what’s known as a “disparate impact,” or disproportionately harmful effect, on people of color. Garden City was ordered to institute an array of anti-discrimination measures and report to a federal monitor. The village appealed, and a decision from a three-judge panel of the Second Circuit is expected any day.

That ruling could be the first to interpret a recent Supreme Court case on fair housing. If Garden City and Nassau County get their way, the Second Circuit will absolve them of liability for discriminatory impact and reaffirm local control over zoning and land use. But if the court instead sides with MHANY and NYCC, the case could eventually result in a requirement that the village and county make land available for affordable development. The decision may have regional, and perhaps national, consequences amid mounting concern over deep racial and economic divides in society.

“There are so many Garden Cities on Long Island, like Levittown, like Oyster Bay. They’re white. They deny you housing there,” said Diane Goins, president of NYCC’s Hempstead chapter. At 73, she works part-time as an elder-care nurse and full-time as an activist. But in spite of her middle-class status, she says she feels the insult of segregation. “If you put up a map, [you see] we are locked into certain places,” she said of the African-American community. Garden City, it seemed to her, was off-limits: “It’s a dream to live in a place like that. You can pass through, but you can’t stay.” 

Next door, a world away

Long Island’s two counties — Nassau to the west and Suffolk to the east — suffer a well-documented shortage of affordable housing. Rental units are scarce and rates of segregation high. In 2008, New York State passed the Long Island Workforce Housing Act, with the goal of assisting middle-income professionals such as nurses and electricians. According to a report by the left-leaning nonprofit Center for Popular Democracy, that law has failed to produce a single unit of affordable housing, even as defined to include households earning up to 130 percent of the area median income of $109,000 per year [PDF].

Thern “TJ” Shivers lives with her 10-year-old son in northwest Hempstead, a short walk from Garden City. Tall and rangy, with the anxious bearing of a helicopter mom, she’s a near archetype — save her cigarette habit — of a do-gooder in search of a better life. Eight years ago, Shivers’s husband died of cancer and she left rural South Carolina with their then-toddler, Robert. They went to stay with her sister on Hempstead’s Terrace Avenue, in an apartment building subsidized by the U.S. Department of Housing and Urban Development, or HUD. 

Thern "T.J." Shivers walks her 10-year-old son, Robert, home from school in Hempstead. Shivers said she has spent years trying to relocate to a safer area with a better school district.
Yana Paskova for Al Jazeera America

The enormous complex of 417 units sees frequent elevator trouble and petty crime. There’s an after-school program in the lobby, and, just outside the building doors, a visible drug trade. While crashing on her sister’s couch, Shivers, who receives disability benefits for a heart defect, applied for housing subsidies and called scores of landlords to find a better home for her son. She focused her search beyond Hempstead — in Garden City and other, more affluent towns. She wanted to find Robert a decent public school and protect him from bullies who’d jumped him and punched him in the head, she said. But after years of trying, they landed just a stairwell away, in a rat-infested one-bedroom on Terrace Avenue. 

Shivers and her son moved into their own apartment in the middle of February. Two days later, a building fire displaced them and more than a dozen other tenants for weeks, she said. Peter Florey, principal of Terrace 100, LP, which owns the building, said through a spokesman that all affected tenants were provided alternate shelter and other assistance. The building has a system for responding to complaints of rodents and requests for repairs, he said, and security cameras and officers to patrol for crime.

Through a HUD subsidy program known as Section 8, Shivers pays just 30 percent of her income toward rent. But her apartment is by no means cheap. She contributes $416 per month and HUD pays another $1,527 — in total, about the rent for a small one-bedroom in Garden City. “We’ve been making calls to these complexes out in Garden City. … As soon as I say, ‘Do you accept any type of programs?’ they say, ‘Oh, no, we don’t accept any programs. We have a building in Freeport,’ back in the low-income area.” 

Shivers’s subsidy comes through a consortium of towns, villages and cities that decides how HUD money should be distributed in the county. Like other such groups, Nassau County’s has been criticized for concentrating affordable housing units and rent subsidies in poor, racially homogenous neighborhoods rather than spending that money to help residents move into middle-class, majority-white areas.

This year, Nassau County received $15.6 million from HUD and, according to NYCC, used much of it in low-income, low-opportunity areas. (A public-information request for the allocation of these funds is still pending with HUD.) John Sarcone, director of the consortium and the Nassau County Office of Housing and Community Development, declined to comment.

Recent research shows that, unless poor families can move into neighborhoods with better schools and services, they have little chance of climbing the economic ladder. Relocating households is the best way to undo the segregation “brought about by many governmental policies: very blatant discriminatory actions, restrictive covenants and zoning,” said Joe Rich, an attorney for MHANY and NYCC and staff counsel at the nonprofit Lawyers’ Committee for Civil Rights under Law. Yet HUD continues to allow housing subsidies to be spent in poor neighborhoods, he said, and affordable-housing developers often find it impossible to build in wealthier areas. Barriers include restrictive zoning laws, wastewater and traffic regulations designed for single-family homes, and the fierce opposition of homeowners, said Anika Singh Lemar of Yale Law School. The lawsuit filed by MHANY and NYCC is meant to break this pattern, plaintiffs say. 

Segregated neighbors: Data on Garden City and Hempstead

Graphic by Joanna S. Kao
Note: The area in Garden City with the lowest median household income includes a golf course and recreation center. The white spot just below that indicates an insufficient amount of data for the campus of Adelphi University.

The story behind the legal challenge dates back to 2002, when Nassau County decided to sell a 25-acre square of land located in Garden City. Then-County Executive Thomas Suozzi envisioned a lucrative mix of commercial and residential buildings, including up to a few dozen affordable housing units. But to move forward, he needed Garden City to rezone the area to permit multifamily units. Village officials initially agreed — that is, until their constituents revolted.

At public hearings in 2004, locals angrily opposed multifamily dwellings. Ninety-five percent of Garden City residents are homeowners, with a median household income of $150,000 per year. Apartments, they said, would attract too many low-income tenants, flooding the public schools with underperforming students, causing congestion on local roads, and threatening the village’s values and “quality of life.” Gail Madigan, a Garden City homeowner, testified: “I moved here from Brooklyn so that when I walked out of my house I did not turn to my left and see apartment buildings.” Resident Sheila Di Masso stated: “I don’t want town houses. I don’t want apartments. … We worked very hard to live in Garden City because what it is. And I feel like very slowly it’s creeping away by the building that is going on.” (Madigan could not be reached for comment; Di Masso declined to speak.)

Officials quickly reversed course. Suozzi pledged that only “upscale” housing would be built on the site. “[T]here is a great need for affordable housing,” he said at a public hearing, “but Garden City is not the location.” Peter Negri, a village trustee, testified that he did not believe “housing occupied by low-income minorities” was consistent with “the existing character of the neighborhood.” Garden City subsequently rezoned the land for commercial and residential use, though not for affordable apartments. The county put out a request for bids on the property and invited building plans for single-family homes, town houses and commercial space. Corporate developers submitted proposals and so did MHANY — but for low-income housing, as a gesture of protest. Nassau County accepted the top offer of $56.5 million from a for-profit company, and in 2005, MHANY filed suit. 

Slideshow: A stark inequality

Around the same time, there were other instances of alleged discrimination in Garden City. NYCC (then known as ACORN) conducted a study with African-American, Hispanic and white “testers,” which found that real estate companies showed bias against applicants of color. In a separate investigation, the New York state attorney general concluded that village employees refused black people entry into Garden City parks on the assumption that they weren’t residents, while permitting white nonresidents to enter. Green signs in every park still advise: “This area for use by Garden City residents only.”

In 2010, Suozzi’s newly elected successor, Edward Mangano, announced that he was canceling the $56 million deal and would no longer sell the land at issue in the lawsuit. Nassau County committed to using the plot for a new family court, thereby wiggling free as a defendant. Mangano’s office declined to speak about the rescinded sale or anything related to the litigation.

The case went to trial in 2013, eight years after it began. In his ruling, Judge Arthur Spatt of the Eastern District of New York held that Garden City’s zoning law produced a disparate impact on people of color. While the court did not mandate any immediate construction of affordable housing, it did specify lesser remedies, including fair-housing training for public employees, participation in the countywide housing consortium and a requirement that, until April 2019, 10 percent of any new residential construction be affordable. Spatt also appointed a housing monitor, attorney Anthony La Pinta, to ensure that the village complies. “One of my goals is to relay an accurate message of fact and law to the community in an attempt for Garden City to embrace affordable housing,” La Pinta said.

Neither Garden City’s mayor, Nicholas P. Episcopia, nor the board of trustees, whose members are drawn from local property owners’ associations, would agree to be interviewed for this story. (Governing members of those associations did not respond to multiple requests for comment.) But Karen Altman, secretary to the mayor and board, wrote in an email: “While Garden City does not own, operate or develop residential properties, it continues to obey all applicable federal and state laws, and all court directives, regarding fair housing. It remains optimistic that its position in the courts will be sustained, and that it will be found never to have violated any housing laws.”

There is currently one application for multifamily construction pending in Garden City. If the project is approved, the apartment complex at 555 Stewart Ave. will include 16 affordable units.
Yana Paskova for Al Jazeera America

Regardless of how the case is decided, Nassau County and Garden City’s housing policies could face increased scrutiny. In July, HUD issued a rule defining what local governments — and by extension, zoning boards — must do to advance fair housing. Since the Garden City lawsuit was filed in 2005, several other zoning applications have come before the village trustees. There is one pending request to build multifamily housing: an application for a 128-unit apartment complex at 555 Stewart Ave., about a mile away from the center of town. If approved, it would include 16 affordable units, a few more than the court-ordered minimum. Plaintiffs are keeping close track of the proceedings. “If Garden City denies the owner’s application for a zone change, or otherwise hampers the development plan just long enough to run out our judgment, Garden City’s actions would be suspect,” Chava Brandriss, an attorney for MHANY and NYCC, wrote in an email.

Plaintiffs worry that as the suit drags on, there will be little land left to build on in Garden City. Earlier this year, a plot once eyed for affordable development was transformed into luxury condos. Goins of NYCC acknowledges that the lawsuit, measured solely in square feet, may in some ways seem futile. But even if nothing is built as a result of the decision, she believes a final ruling in the plaintiffs’ favor could change people’s thinking and chart a different path on Long Island. “Maybe we won’t get a piece of property, but people will see about housing discrimination,” she said. “This is the first time the door has even been opened.”