Case 7:16-cv-09038-VB-JCM Document 66 Filed 03/16/18 Page 1 of 22

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
FAIR HOUSING JUSTICE CENTER, INC.,
Plaintiff,

No. 16-9038 (VB) (JCM)

v.
AMENDED COMPLAINT
TOWN OF EASTCHESTER,
Defendant.
Plaintiff Fair Housing Justice Center, Inc. (“FHJC”), by its attorneys,
Emery Celli Brinckerhoff & Abady, LLP, for its Amended Complaint against Defendant
Town of Eastchester (the “Town”) alleges as follows:
INTRODUCTION
1.

This action seeks to enjoin the Town of Eastchester from discriminating on

the basis of race and national origin in its Section 8 housing voucher program and zoning
code.
2.

The Town of Eastchester has two programs designed to provide low-income

families and seniors with decent and affordable housing. Through a system of
preferences, the Town has designed those programs to benefit its own overwhelmingly
white residents and their relatives at the expense of even the neediest applicants from
other parts of more racially diverse Westchester County and beyond.
3.

The Town operates its federally funded rental-assistance Section 8 Housing

Choice Voucher Program in a way that ensures these results. Town residents are given
preference in the distribution of vouchers, and, because the Town is 87% white and nonHispanic, that residency preference leads to the exclusion of most African American and

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Hispanic renters. As a result, although white non-Hispanic people make up only about
26% of the applicants on Eastchester’s waitlist for a voucher, they comprise more than
70% of the people who have received vouchers.
4.

The preference results in ten- to fifteen-year waits for non-residents, who are

more likely to be African American or Hispanic. Over the last 40 years, fewer than 10
people who did not have the residency preference were able to obtain housing vouchers
from the Town.
5.

The Town has imported similar residency preferences into its zoning code,

which allows a special use permit for senior housing developments that include lowincome units. The disparate results that plague the voucher program will inevitably be
the same for low-income seniors when a senior housing development, currently under
construction, is completed.
6.

The Town has created and maintained these residency preference schemes at

least in part because of their racially disparate impact. Its housing programs suppress
minority participation, deny housing opportunities to African Americans and Hispanics,
and perpetuate residential racial segregation.
JURISDICTION AND VENUE
7.

This Court has subject matter jurisdiction over the federal claims pursuant to

28 U.S.C. §§ 1331 and 1343, 28 U.S.C. §§ 2201 and 2202, and 42 U.S.C. § 3613. This
Court has supplemental jurisdiction over the New York State law claims pursuant to 28
U.S.C. § 1367.
8.

The acts complained of occurred in the Southern District of New York, and

venue is lodged in this Court pursuant to 28 U.S.C. § 1391(b).

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THE PARTIES
Fair Housing Justice Center, Inc.
9.

Plaintiff Fair Housing Justice Center, Inc. is a private non-profit

organization dedicated to ensuring that all people have equal access to housing
opportunities in the greater New York City region by eliminating housing discrimination
and creating open, accessible, and inclusive communities. It is organized under the laws
of New York and operates within the Southern and Eastern Districts of New York,
including Westchester County.
10.

Among other things, FHJC (a) provides information to the public and other

non-profit organizations in the New York City regional area about fair housing laws;
(b) provides intake counseling to individuals and organizations with allegations of
housing discrimination; (c) conducts testing and other investigations of allegations of
housing discrimination; (d) makes legal referrals to cooperating attorneys; (e) assists with
the preparation and filing of administrative housing discrimination complaints; and
(f) provides post-referral litigation support services. FHJC provides these services free of
charge and without regard to income.
11.

FHJC also conducts testing investigations for government law enforcement

agencies, provides technical assistance to non-profit organizations engaging in fair
housing enforcement activities, and engages in policy initiatives that further FHJC’s
mission, including the publication and dissemination of reports and educational materials.
12.

FHJC recruits, trains, and utilizes individuals as “testers,” persons who pose

as renters or homebuyers for the purpose of obtaining information about the conduct of
local governments, landlords, real estate companies, agents, and others to determine

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whether illegal housing discrimination is taking place.
Town of Eastchester
13.

Defendant Town of Eastchester is a municipal corporation organized under

the laws of the State of New York, with its principal offices at 40 Mill Road, Eastchester,
New York. The Town is located in southern Westchester County within the Southern
District of New York. The town includes the Villages of Bronxville and Tuckahoe.
14.

The Town is governed by a Town Board and has a Planning Board with

authority to enact and enforce the Town’s zoning code. All references to Defendant
Town include any individual acting on behalf of, or under the authority derived from, the
Town.
15.

The Town receives federal housing funds from the United States

Department of Housing and Urban Development (“HUD”) which it uses to operate a
Section 8 Housing Choice Voucher Program. As a recipient of federal housing funds, the
Town is required to administer its housing programs in a manner that affirmatively
furthers fair housing consistent with 42 U.S.C. § 3608.
16.

The Town’s population as of the 2010 Census was approximately 32,000.

The Town’s population was 87% white and 5.8% black as of the 2010 Census. At that
time, the Town’s population was 5.48% Hispanic or Latino of any race.
FACTUAL ALLEGATIONS
The Town’s Discriminatory Section 8 Residency Preferences
17.

Congress established the Section 8 Existing Housing Program, now known

as the Housing Choice Voucher Program, which is the largest rent subsidy funding source
of the federal government, as part of the Housing and Community Development Act of
1974, P.L. 93-383, Title II, § 201(a), 88 Stat. 663, 662-66, now codified at 42 U.S.C.
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§ 1437f and Housing Community and Development Act of 1987, Pub. L. Number 100242 § 143, 101 Stat. 1814, 1850 (1988), codified as amended at 42 U.S.C. § 1437f(o). Its
purpose is to aid low-income families to obtain a decent place to live through the use of
vouchers to subsidize their rent in the private housing market.
18.

Low-income families and individuals may apply for Section 8 vouchers at

any authorized housing agency in New York when the waiting lists are open. Each
Housing Choice Voucher program is open to all applicants, not just local residents.
19.

With rental assistance, renters pay approximately one-third of their incomes

for rent, and federal funding provided by HUD pays the remaining amount of rent to
landlords. Local housing agencies operating Housing Choice Voucher programs must
administer their programs in accordance with rules prescribed by HUD.
20.

Local housing agencies, such as the Town of Eastchester, have limited

discretion to develop local “preferences,” including residency preferences, based on local
housing needs and priorities, for rental voucher applicants. All preferences, however,
must comply with the non-discrimination and equal opportunity obligations of federal
housing laws, federal civil rights laws, and the United States Constitution. As required
by 24 C.F.R. § 982.207(b)(1)(iii), the Town is prohibited from using a residency
preference that has the purpose or effect of delaying or otherwise denying admission to
its Section 8 voucher program on the basis of race or national origin.
21.

HUD regulations also prohibit the Town from using a residency preference

that is based on how long an applicant has resided or worked in the residency preference
area. See 24 C.F.R. § 982.207(b)(1)(iv).
22.

Local housing agencies, such as the Town of Eastchester, must adopt a

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written administrative plan that establishes local policies for operation of the Town’s
housing voucher program in accordance with HUD requirements. The administrative
plan sets forth the policies for the selection of applicants from the waiting list, as well as
the Town’s procedures for closing and reopening the waiting list. The Town is required
to administer its program in accordance with its administrative plan and must advise
HUD of any revisions to its plan.
23.

Since at least 2014, the Town’s Housing Choice Voucher Program

Administrative Plan has included two types of local preferences: a general preference and
a residency preference. A general preference is given to households that have been
involuntarily displaced, are paying more than half of their income in rent, or are living in
substandard housing or are homeless. A residency preference is given to households that
already live in the Town or include members who work or have been hired to work in the
Town.
24.

Under the Administrative Plan, the residency preference trumps the general

preference: first priority goes to applicants claiming both preferences; second priority to
applicants claiming a residency preference only; third priority to applicants claiming a
general preference only; and final preference to applicants not claiming either preference.
25.

As a result, applicants who do not already live or work in the Town will

remain on a waiting list until all applicants with sufficient pre-existing ties to the Town
have been admitted, regardless of the respective urgency of the applicants’ needs.
26.

To enforce its preferences, the Town maintains waiting lists from which

families are selected for participation in the voucher program by preference and time and
date of their applications.

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27.

The resulting difference between residents’ and non-residents’ prospects for

participating in the program is dramatic. As part of its investigation, FHJC sent a tester
to the Town to inquire about its program waiting lists on February 10, 2016. A Town
employee told the FHJC tester that residents have a several-months to two-years wait,
while nonresidents wait for ten or fifteen years.
28.

As of June 2017, the resident waiting list had only 25 active names, while

the non-resident waiting list had 616 active names. Because the Town awards an average
of only about 20 vouchers per year, the Town knew that those on the non-resident waiting
list had almost no chance of receiving a voucher while those on the resident waiting list
would receive vouchers within a year if otherwise eligible. In fact, based on data
stretching back to 1976, fewer than 10 people who did not receive a residency preference
were able to obtain housing vouchers from the Town.
29.

Although the Town’s administrative plan states that it will advertise its

voucher program in newspapers, minority media, and on local cable broadcasts, in
practice the Town does not advertise or make any specific outreach efforts at all.
30.

Although the Town’s administrative plan defines “residents” to include

those who work in the Town, the Town does not disclose this fact on its website, on the
voucher application, anywhere in the Town’s Section 8 office, or in letters sent annually
to applicants on the Town’s waiting list. When an FHJC tester called the Section 8 office
in July 2008 to ask how the Town’s voucher program was administered, she was told that
she would “have to be on a non-resident preference list, which is eight to ten years
minimum, for a voucher.” By contrast, residents faced a wait of “a year max.” When the
tester asked how she could get on the resident list, the person in the office told her she

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had to submit proof of residency, like a lease; he never said that the residency preference
was available to those who are employed in the Town. A second tester had a similar
experience upon visiting the Town’s Section 8 office in February 2016: He was never
told that he could qualify for a residency preference if he worked in the Town. While the
administrative plan states that those who work in the town may qualify for a preference,
the plan is available only through a Freedom of Information Law request to the Town
Clerk. Thus, applicants are not made aware that they may qualify for a residency
preference even if they do not reside in the Town.
31.

By using residency preferences, by warning non-resident prospective

applicants of a ten- to fifteen-year wait, and by failing to advertise the availability of the
residency preference to those who work in the Town, Defendant discourages nonresidents, who are more likely to be African American and Hispanic, from applying to its
voucher program. By its policies and conduct, Defendant suppresses minority
participation in the Town’s Housing Choice Voucher Program, denies housing
opportunities to African Americans and Hispanics, and perpetuates the residential racial
segregation that characterizes the Town.
The Town’s Residency Preferences Favor White Section 8 Applicants and
Perpetuate Racial Segregation
32.

The impact of the Town’s preferences on minority participation in its

voucher program is striking.
33.

Public records—including data in the “Picture of Subsidized Households,”

annually compiled and produced by HUD, and the tabulations created by the U.S. Census
from the 2014 American Community Survey—allow for estimates showing that
Eastchester’s population of voucher-eligible individuals is considerably whiter than the

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voucher-eligible populations of Westchester County, where Eastchester is located.
34.

Based on these estimates, in Eastchester, fully 87% of income-eligible

households are white, compared to 46% in Westchester as a whole. Correspondingly, in
Eastchester, approximately 5% of eligible households are African American compared to
20% in Westchester; and approximately 4% are Hispanic, compared to 30% in
Westchester.
35.

As a result, the Town’s residency preference is also a de facto racial

preference. The results are unsurprising: Compared to a policy that would allow equal
access to all applicants regardless of residency or would prioritize Westchester County
residents, the Town’s preference system reduces the number of African American and
Hispanic households receiving vouchers.
36.

Data from the Town confirm this result. Since 2002, 66% of applicants for

Town vouchers have identified as non-white, but only 27% of those who received Town
vouchers were non-white. By contrast, 26% of applicants identified as white nonHispanic, but that group makes up 73% of those who have received Town vouchers. This
stands in stark contrast to voucher-holders in Westchester County as a whole, where only
18% are white non-Hispanic, while 81% are non-white.
37.

The Town administers its Section 8 program in full knowledge of the

disparate impact that the residency preference levels on non-white applicants. Those on
the residents’ waitlist from 2002-2017 were 63% white non-Hispanic, 15% black, and 9%
Hispanic. Those on the non-residents’ waitlist during the same period were 13% white
non-Hispanic, 46% black, and 27% Hispanic.
38.

As a result of these policies and practices, a white applicant for a Town

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voucher has a chance of receiving a voucher that is 8 times higher than the chance of a
non-white applicant.
39.

As an example, one African American applicant remained on the Town’s

waitlist for 12 years before receiving a voucher in 2017. A white applicant who was a
Town resident waited less than one month before receiving a voucher in 2016.
40.

The Town takes further affirmative steps to maintain racial segregation.

Before a voucher is issued to an applicant, the Town provides the applicant with a map of
the “impacted areas” of Westchester County. The map is based on 1990 Census data, and
purports to show areas of the County where 40% or more people live below the poverty
line and areas with more than 40% minority population. The Town discourages
applicants from leasing units in any “impacted area.” The Town tells applicants that the
“impacted areas” show areas with high crime, but in fact no crime statistics are included
in the map. Given that the vast majority of recipients of vouchers from the Town are
white, the Town’s practices effectively steer white residents away from minority
neighborhoods and perpetuate racial segregation.
41.

There is no legitimate non-discriminatory reason for using residency

preferences in the way the Town defines and applies them.
42. The Town implements the residency preferences in its voucher program at
least in part because of their racially disparate impact.
The Town’s Discriminatory Preferences - Zoning Ordinance
43.

In 2000, the Town adopted a zoning ordinance that authorizes a special use

permit for Senior Housing Development in the Town’s General Business District. See
Zoning Law § 12(H)(27).
44.

Under the ordinance, a Senior Housing Development may offer occupancy
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only to “senior households”—households in which all members must be at least 55 years
old, with two exceptions. A household member can be under 55 only if he or she is the
spouse of someone who is at least 55 years old or is over 18 years old and is the
physician-certified caretaker of someone who is at least 55 years old.
45.

Households are limited to two persons in efficiency and one-bedroom units

and three persons in two-bedroom units.
46.

All Senior Housing Developments must also offer a minimum of 15% of

their units as affordable housing to senior citizens earning less than 80% of the Area
Median Income for Westchester County, a number defined each year by HUD.
47.

As with its voucher program, the Town has adopted a residency-based

preference system for its permitted Senior Housing Developments. The owner or
manager of any such development is required to establish a waiting list for prospective
tenants or purchasers and to select tenants or owners based on the following preferences.
48.

First preference is granted to Town residents. Applicants within this group

are internally ranked by the cumulative length of their residency. Priority is given to
those who have lived in the Town longest.
49.

Second preference for Senior Housing Development occupancy is granted to

immediate-family members of current and former Town residents—their parents,
children, and siblings. These applicants are also internally ranked, with relatives of
current town residents given priority. They, in turn, are ranked based on the cumulative
length of their family members’ Town residency. Relatives of former Town residents are
given next priority, also ranked based on the cumulative length of their relatives’
residency.

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50.

Third preference for Senior Housing Development residency is given to all

other Westchester County residents, but even these applicants are given priority based on
the cumulative length of any former residency within the Town. Only after all
Westchester County residents who have formerly lived in the Town have received
housing are other Westchester residents considered, with priority given based on the
cumulative length of their residency in the county.
51.

The fourth preference goes to all other applicants, but former residents of

the Town are favored in this group too, and they are ranked based on the cumulative
length of their former Town residency. Finally, all other applicants are offered housing
based on the cumulative length of their residency in New York State.
52.

The Town’s zoning ordinance ensures enforcement of these preferences in

perpetuity. Any developer who applies for a Senior Housing Development permit must
file and record a covenant, running with the land and binding upon all successive owners,
ensuring that the project will be maintained as a Senior Housing Development, and that
both the priority system and the minimum number of affordable units will always be
maintained.
53.

The ordinance also ensures the Town’s ability to police developments’

adherence to the preference scheme. The owner or manager of a Special Housing
Development is required to provide to the Town all waiting lists, lists of available units,
notices of rental or sale, and quarterly certified rent rolls. The ordinance further
authorizes the Town’s Housing Choice Voucher Program Officer and Building Inspector
to review these records and visit and inspect the premises and books, records, and
accounts of any Senior Housing Development to verify compliance with the ordinance,

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including the preference system. Violations are punishable by fine and imprisonment.
54.

When the Town was considering amending its zoning ordinance to permit

multi-family housing in 2009, some town residents expressed various concerns about its
effects to elected Town officials. At a Town Board meeting in 2009, a white resident and
president of the North Eastchester Civic Association stated his concern that the proposed
zoning ordinance could allow an “H.U.D. project” in the Town. Town Supervisor
Anthony Colavita responded that the senior housing permitted by the zoning code would
be for “Eastchester, Tuckahoe, and Bronxville residents only.” He also promised that the
Town would not “borrow” any HUD money for senior housing, and said that if a
developer “took HUD money, they therefore couldn’t comply with our zoning code,
therefore they couldn’t build a building and wouldn’t get permission.”
55.

With these assurances, the Town Board approved the zoning ordinance.

56.

In or around January 2011, a developer sought a special use permit from the

Town to construct a 103-unit senior rental housing development called Summerfield
Gardens.
57.

While the proposal was pending approval, Town Supervisor Colavita sent a

letter in October 2013 to Town residents to respond to, as he put it, “numerous phone
calls and inquiries” regarding the Summerfield Gardens proposal. Specifically, he wrote,
Town residents told him of rumors that the Town “is building ‘low income housing’ for a
federal/state funded ‘low income housing project’ or that the Town of Eastchester is
supporting the owner’s sale of the property to the County as part of its HUD Affordable
Housing settlement with the federal government.” Other rumors, he wrote, have
circulated that the development would be “a housing project for non residents or all age

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groups.” He continued: “ALL OF THE ABOVE IS COMPLETELY FALSE.”
58.

The letter continued: “[T]he application is for a brand new fair market value

rental apartment building for our Eastchester, Bronxville and Tuckahoe senior citizens
. . . . No part of the application is in any way related to any low income housing, nor any
federal or state funded housing nor does it have anything to do with Westchester County
HUD Affordable Housing settlement conditions. These rumors are simply false. There
are no proposed ‘housing projects’ being considered.” Colavita noted the residency
preferences in the zoning code. “Eastchester, Tuckahoe and Bronxville seniors have
priority over all others. Though it is extremely unlikely, in the event there are no
Eastchester, Tuckahoe and Bronxville seniors in need of an apartment, then immediate
family members of our town residents (i.e. mother or father who want to relocate to our
Town to be closer to their families) have the next priority.”
59.

The letter continued: “Lastly, in an effort to keep our seniors who may be

struggling financially in the town, the law provided for fifteen percent of the apartments
to be rented at affordable rates. Another rumor concerned Section 8 housing vouchers
being issued to our seniors for this proposed building. There are currently more than one
hundred housing vouchers issued to our seniors in almost every apartment building
located throughout the entire town. Section 8 vouchers may be available for
Summerfield Gardens senior tenants from our town if the landlord and tenant both agree
to participate.”
60.

A month prior to Supervisor Colavita’s letter, during a September 2013

Town Planning Board meeting to discuss the Summerfield Gardens application, a
resident expressed concern that the development would turn the area into “a Bronx

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neighborhood.” Another resident worried that “more Section 8 people [will] come in,
[and] we’re going to have the first project in Eastchester. That’s what it looks like to me,
it looks like a housing project.” He warned the Planning Board that “these people” would
move in “and there goes our neighborhood.” He asked another resident present at the
meeting, who used to live in the Bronx, “Do you want this to become the Bronx again?”
He continued: “This is not New Rochelle. This is not Yonkers. We don’t want this. If
we wanted that, we would live there where it’s much cheaper. . . . I work two jobs to get
my house, why does someone else live in our neighborhood that can’t afford it. I don’t
understand it.”
61.

According to Census data from 2015, the population of Bronx County is

29% black, 55% Hispanic or Latino, and 10% white; the population of Yonkers is 15%
black, 35.5% Hispanic or Latino, and 41% white; and the population of New Rochelle is
18% black, 28% Hispanic or Latino, and 47% white. Unlike Eastchester, all three places
have majority non-white populations.
62.

In November 2014, the Planning Board approved the variances for

Summerfield Gardens with a requirement that the zoning code’s residency preferences be
utilized at the site. Since then, the developer for Summerfield Gardens has not applied to
the Town for a building permit.
63.

In or around April 2013, another developer sought a special use permit to

construct a 117-unit senior rental development called Elide Manor.
64.

While reviewing the Elide Manor application, the Westchester County

Planning Board wrote a letter in December 2013 to the Town’s Planning Department.
The letter encouraged the Town to support setting aside affordable units at Elide Manor

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as affirmatively furthering fair housing (“AFFH”) units as defined by the County. The
letter further encouraged the Town “to consider amending local regulations so as to be
consisted with the County’s ‘Model Zoning Ordinance Provisions.’”
65.

At the time, the County’s AFFH units and the Model Zoning Ordinance

Provisions prohibited residency preferences.
66.

The Town did not respond to the letter, nor did it consider reserving any

units as AFFH units or adopting the Model Zoning Ordinance Provisions.
67.

In October 2014, the Town Planning Board approved all variances for Elide

Manor. The Town told the developer of Elide Manor that it was required to apply the
zoning code’s residency preferences to all units in the building, not just the affordable
units. The project is currently under construction.
The Town’s Residency Preferences Favor White Seniors and Perpetuate Racial
Segregation
68.

Only households with incomes below 80% of the Area Median Income for

Westchester County as defined by HUD meet the Town’s income eligibility criteria for
affordable Senior units. Within this group of households, the Town’s residency
preferences favor non-Hispanic white households.
69.

Again, data from the American Community Survey allow for the scope of

the effect to be estimated. This data indicates that about 66% of income-eligible, one-,
two-, and three-person 55-and-over households in Westchester County are white, 17%
are African American, and 14% are Hispanic. By comparison, in Eastchester, 65-andover households with comparable incomes and sizes are 95% white, only 2% African
American, and less than 1% Hispanic. For families below the income threshold with a
head-of-household between 45 and 64 years old, only about 4% are African American,

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and 2% are Hispanic.
70.

As with its voucher program, the Town’s preference for overwhelmingly

white resident applicants for Senior units over non-resident applicants who are more
likely to be African American or Hispanic will reduce the number of African American
and Hispanic households able to purchase or rent the affordable units and will perpetuate
the Town’s residential segregation.
71.

Moreover, because the Town, in contravention to its zoning code, applies

the residency preference to all Senior units, even those not designated as “affordable,”
white resident applicants are overwhelmingly more likely to be accepted for Senior units
than African American or Hispanic applicants. Thus, the Town zoning code’s residency
preferences in practice deny housing opportunities to African American and Hispanic
applicants.
The Town Knew of the Residency Preference’s Racially Disparate Impact
72.

The Town was aware that imposing residency preferences, in both its

Section 8 voucher program and zoning code, has a racially disparate impact that
discriminates against African American and Hispanic applicants for housing.
73.

Currently, there is only one multi-family rental building in the

unincorporated area of the Town of Eastchester (outside of the Villages of Bronxville and
Tuckahoe): Sleepy Hollow Apartments. Sleepy Hollow is privately owned and has a
total of 117 apartments. All the units at Sleepy Hollow are subsidized by HUD for rental
to low-income seniors.
74.

Prior to obtaining funding from HUD and prior to the commencement of

construction, the Town entered into an agreement with Sleepy Hollow’s owner in 1975
that first preference for apartments would be given to Eastchester “town-outside”
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residents and second preference to residents of the Villages of Bronxville and Tuckahoe.
The agreement mandated that the Town, not the owner, would determine the eligibility of
applicants for occupancy at Sleepy Hollow.
75.

From its opening in 1978 through 2005, the Town’s Section 8 office

maintained the waiting list for Sleepy Hollow. The Town also maintained all
applications for Sleepy Hollow, applied the Town’s residency preferences, and selected
tenants for the building.
76.

In a 2004 review of its contract with Sleepy Hollow, HUD found that the

application of the residency preferences did not comply with HUD regulations and had a
disparate impact on non-white applicants. The owner of Sleepy Hollow was instructed
to, and did, suspend the use of the Town’s residency preference until HUD could review
it further. In 2005, HUD sent Sleepy Hollow’s management a letter stating that the
residency preference “could have a disparate impact on African-Americans and Hispanics
as they have significantly lower representation in the preference areas when compared to
the Housing Market Area.”
77.

In response, in 2005 the owner of Sleepy Hollow took over the waiting list

and tenant selection process from the Town and stopped applying a residency preference.
Sleepy Hollow’s owner also informed the Town of the letter from HUD and specifically
of its warning that the use of residency preferences may illegally discriminate.
78.

Starting in at least 2004 and continuing to at least July 2008, the Town’s

website stated that the Town maintained the waiting list for Sleepy Hollow and that
residency preferences were applied to the waiting list, even though during this time,
Sleepy Hollow’s owner had notified the Town of HUD’s directive to stop using a

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residency preference.
79.

At the time, the Town did not suspend its own use of residency preferences

in its Section 8 voucher program. In fact, four years later the Town created new
residency preferences for multi-family housing when it enacted the special use permit for
senior housing, even though it knew that Sleepy Hollow, a multi-family senior building,
no longer applied such preferences at the instruction of HUD.
80.

Indeed, when the 2009 zoning code amendments were discussed at a Town

Board meeting, a white resident raised “a major concern” that this project could turn into
another Sleepy Hollow, “where we lose control of what we have.”
81.

The Town was aware that the vast majority of the recipients of its Section 8

vouchers were white even though the majority of families on the waiting list for vouchers
were non-white.
82.

The Town applies residency preferences in its Section 8 program and in its

senior housing at least in part because of its disparate racial impact.
Town’s Discriminatory Policies Have Injured FHJC
83.

By reason of Defendant’s conduct as described above, FHJC has suffered

injury in the form of diversion of its resources. Plaintiff has expended staff time and
funds to investigate and respond to Defendant’s discriminatory policies and practices
which diverted resources away from FHJC’s other activities. As part of its investigative
efforts, Plaintiff expended staff time and resources to conduct and review testing, to
obtain and review public documents regarding the Town’s zoning code and Section 8
program, and to analyze Census and HUD Section 8 data.
84.

Furthermore, Defendant’s discriminatory policies and practices as described

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above have frustrated FHJC’s mission to (a) ensure that all people have equal access to
housing opportunities; (b) foster open, accessible and inclusive communities; and
(c) eliminate housing discrimination throughout the New York City region, including in
Westchester County, by making housing unavailable and imposing discriminatory terms
and conditions because of race and national origin and by perpetuating residential racial
segregation in the Town of Eastchester and Westchester County.
FIRST CAUSE OF ACTION
(Fair Housing Act, 42 U.S.C. § 3604(a))
85.

Plaintiff repeats and re-alleges the foregoing paragraphs of its complaint as

though fully set forth herein.
86.

Defendant’s conduct as described above makes dwellings unavailable

because of race and national origin in violation of the Fair Housing Act, 42 U.S.C.
§ 3604(a).
87.

Plaintiff is an aggrieved person as defined by 42 U.S.C. § 3602(i). Plaintiff

has been injured by Defendant’s discriminatory conduct, and it has suffered damages as a
result.
88.

Accordingly, under 42 U.S.C. § 3613(c), Plaintiff is entitled to actual

damages, injunctive relief, and reasonable attorneys’ fees and costs.
SECOND CAUSE OF ACTION
(Fair Housing Act, 42 U.S.C. § 3604(b))
89.

Plaintiff repeats and re-alleges the foregoing paragraphs of its Complaint as

though fully set forth herein.
90.

Defendant’s conduct as described above discriminates in the terms,

conditions, or privileges of the rental of a dwelling because of race and national origin, in

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violation of the Fair Housing Act, 42 U.S.C. § 3604(b).
91.

Plaintiff is an aggrieved person as defined by 42 U.S.C. § 3602(i). Plaintiff

has been injured by Defendant’s discriminatory conduct, and it has suffered damages as a
result.
92.

Accordingly, under 42 U.S.C. § 3613(c), Plaintiff is entitled to actual

damages, injunctive relief, and reasonable attorneys’ fees and costs.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff respectfully requests that judgment be entered against
Defendant as follows:
a.

Declaring that Defendant’s actions violate the Fair Housing Act;

b.

Permanently enjoining Defendant from using, requiring, or enforcing residency
preferences in the Town’s Housing Choice Voucher Program

c.

Permanently enjoining Defendant from using, requiring, or enforcing residency
preferences in permitting Senior Housing Developments;

d.

Enjoining Defendant to:
i. Make all necessary modifications to its policies, practices and procedures to
comply with fair housing laws, including amending the Town’s Housing
Choice Voucher Program Administrative Plan to remove residency
preferences and amending the Town’s zoning code to remove residency
preferences from the senior housing development special use permit;
ii. Make all necessary modifications to the Town’s housing choice voucher
waiting list to allocate future vouchers based on the original date of
application and not based on residency in the Town;

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iii. Train all Defendant’s officials, personnel, and employees on fair housing
laws;
iv. Adopt and implement an affirmative marketing plan for the Town’s Housing
Choice Voucher Program that prevents future housing discrimination and does
not create or maintain residential segregation;
v. Modify restrictive covenants that currently apply to senior housing
developments to remove residency preferences; and
vi. Remedy the unlawful discrimination caused by its actions and omissions.
e.

Awarding damages to Plaintiff;

f.

Awarding Plaintiff reasonable attorneys’ fees and costs under 42 U.S.C. §
3613(c); and

g.

Awarding such other and further relief as this Court may deem just and proper.

Dated: New York, New York
March 16, 2018
EMERY CELLI BRINCKERHOFF
& ABADY LLP

By: _____/s_____________________
Diane L. Houk
Alison Frick
Ashok Chandran
600 Fifth Avenue, 10th Floor
New York, New York 10020
(212) 763-5000
Attorneys for Plaintiff

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