Real Estate Developers Argue Town Violated Federal Anti-Discrimination Laws in Obstructing Their Proposed Development

In the case of Brookline Opportunities LLC v. Town of Brookline, 21-cv-770-PB, 2023 DNH 81P (D.N.H. Jul. 7, 2023), two real estate development companies wanted to build an affordable rental housing development in Brookline, New Hampshire. The town responded to the proposed development by adopting a one-year moratorium on the issuance of new building permits and approval of new site plan and subdivision applications. After the moratorium expired, Brookline adopted a growth management ordinance that severely limits new residential construction. The plaintiffs alleged that these actions by the town were discriminatory against the likely tenants of the proposed development due to their familial status, race, and national origin, thus violating the Fair Housing Act. This dispute led to a lawsuit being filed in the United States District Court in New Hampshire.

The following issues were presented to the court:

1. Whether the plaintiffs had standing to sue.

2. Whether the plaintiffs' claims were ripe for judicial review.

3. Whether the town's moratorium and growth management ordinance were facially discriminatory against families with children, Blacks, and Latinos.

4. Whether there was direct evidence of discriminatory intent by the town in adopting the moratorium and growth management ordinance.

5. Whether the town made discriminatory statements in violation of § 3604(c) of the Fair Housing Act.

1. Standing to Sue. The town challenged the plaintiffs' standing, arguing that the plaintiffs' proposed project did not comply with a municipal ordinance that was unrelated to the moratorium or the growth management ordinance which were central to the dispute. The town contended that this non-compliance negated the plaintiffs' standing to bring their lawsuit.  The court, however, found against the town's argument, affirming that the plaintiffs indeed had standing to sue. The court emphasized that the plaintiffs had demonstrated a concrete and particularized injury that was directly traceable to the town's actions—specifically, the adoption of the moratorium and the growth management ordinance which severely limited new residential construction. This, according to the court, sufficed to establish an injury-in-fact, fulfilling the first criterion for standing under Article III of the Constitution.

Moreover, the court rejected the town's contention that the plaintiffs' project's non-compliance with another municipal ordinance somehow affected their standing. The court pointed out that there existed a genuine dispute of material fact as to whether the developers could modify their project to comply with the town's reading of the workforce housing ordinance (WHO), which was the ordinance in question. The court noted evidence indicating that the developers were prepared to make such modifications if required by the Planning Board and had even drafted alternative plans.

By establishing that the plaintiffs could potentially bring their project into compliance with the WHO, the court effectively dismantled the town's standing argument. The court underscored that the essence of the plaintiffs' alleged injury was their inability to use their property to build workforce housing due to the challenged ordinances. This was sufficient to demonstrate that the developers' injury was "fairly traceable" to the town's conduct and that a favorable court decision could likely redress that injury—satisfying the traceability and redressability requirements for standing.

2. Ripeness for Judicial Review.  The town argued the plaintiffs’ claims were not ripe for judicial review, suggesting that without a formal application submission for the project to the Planning Board, the dispute remained premature. This argument hinged on the idea that only through the formal application process could the town's actual response to the proposed development—and hence, any potential legal dispute—be definitively determined.

Ripeness is a doctrine designed to prevent courts from engaging in abstract disagreements or hypothetical disputes, ensuring that the judiciary addresses only concrete, fully-formed legal controversies. In evaluating ripeness, courts consider both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration. Fitness typically involves questions around the finality and definiteness of the actions at issue, and whether judicial intervention depends on facts that might yet evolve. Hardship examines the immediate impact on the parties from delaying review.  The court found the developers’ claims against the town were indeed ripe for several reasons.

First, the court recognized the effects of the challenged moratorium and growth management ordinance on the plaintiffs' proposed development were not theoretical or abstract but concrete and immediate. These municipal actions directly interfered with the developers' ability to pursue their project, representing definitive, not contingent, impediments.

Second, the court noted that requiring the plaintiffs to submit a formal application, as the town suggested, would be a futile gesture. Given the clear restrictions imposed by the moratorium and the growth management ordinance, any application for the project as proposed would have been unapprovable during the moratorium and highly impractical under the subsequent ordinance, rendering the process unnecessary for establishing the legitimacy of the dispute.

Moreover, the court emphasized that uncertainties such as the future availability of financing or final approvals, which are typical of many development projects, do not negate ripeness in cases where the plaintiff has taken significant steps towards realization of a project. Here, the plaintiffs had not only prepared a detailed conceptual plan but had also engaged in substantial preparatory work, demonstrating a commitment to the project that moved their legal challenge beyond hypothetical territory.

3. Facial Discrimination. Facial discrimination involves a law or policy that explicitly imposes different treatment on a protected group directly or by implication, without necessitating an inquiry into the underlying intent.  The plaintiffs argued that the town's legislative actions—specifically, the moratorium on residential development and the subsequent growth management ordinance—were inherently discriminatory. They contended these measures were adopted with an underlying intent to block the affordable housing project, thereby discriminating against prospective tenants based on their familial status, race, and national origin.

However, the court found the moratorium and growth management ordinance did not constitute facial discrimination. It reasoned that these legislative actions applied universally to all potential developments, without explicitly singling out or imposing additional restrictions based on the characteristics of likely tenants or the familial composition of potential residents. The ordinances did not contain provisions that directly favored or disfavored any specific group; instead, they applied evenly across the board to regulate residential development in response to perceived infrastructure and service capacity issues.

Moreover, the court examined the claim that the ordinances indirectly discriminated against families with children by citing school capacity and the potential strain on educational resources as reasons for their enactment. The court determined that concerns related to school capacity could not be equated with discrimination against families with children. It emphasized that school capacity is a legitimate municipal concern that can be addressed through planning and zoning measures without necessarily discriminating against a protected class. The court illustrated that managing educational resources and ensuring adequate schooling facilities are valid objectives for a town, which do not, in themselves, indicate an intent to discriminate based on familial status.

Furthermore, the court addressed the exemptions within the ordinances for "housing for older persons," recognizing such exemptions align with the provisions of the Fair Housing Act. These exemptions did not, in the court's view, transform the ordinances into instruments of facial discrimination. Instead, they represented an attempt to balance various housing needs within the community, including accommodations for older residents, in accordance with federal law.

4. Direct Evidence of Discriminatory Intent. The court found the record did not contain direct evidence of discriminatory intent by the town sufficient to grant summary judgment in favor of the plaintiffs.

5. Discriminatory Statements. Regarding the alleged violation of § 3604(c) of the Fair Housing Act through discriminatory statements, the court did not provide a specific ruling in the provided excerpts, focusing instead on the broader issues of standing, ripeness, and discrimination claims.

The court's decision was to deny both the town's and the plaintiffs' motions for summary judgment, except for granting the town's motion regarding the claims against the Selectboard, which were dismissed because no actionable conduct on its part was alleged.

Aftermath

According to an article in the New Hampshire Union Leader, the developers and the town settled the matter through mediation.  The town agreed to pay the developers $610,000 in damages and to allow the developer to build up to 98 housing units in a phased approach. The developers must proceed through the town’s standard application process and obtain all necessary local and state approvals.  Per the article, the payment to the developers is contingent upon receiving all approvals.

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