Research for 2014 fair housing claim
On June 27, 2014, BrooklynSpeaks coalition members settled threatened litigation against the New York State Empire State Development Corporation (ESDC) and Forest City Ratner Companies (FCRC). The basis of the coalition’s claim was that a delay in completion of the Atlantic Yards project agreed upon by ESDC and FCRC resulted in a disparate impact in denying African-American residents of Brooklyn community districts 2, 6 and 8 access to affordable housing in violation of the Federal Fair Housing Act and other laws. The terms of the settlement included a ten-year reduction in project’s completion date, and the creation of a State agency to oversee compliance with Atlantic Yards’ public commitments.
In June of 2015, one year after the settlement, the Supreme Court of the United States issued an opinion in the case of Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc. which affirmed that a cause of action may exist under the Fair Housing Act based on a showing of a disparate impact, but also placed some limits on disparate impact claims.
The coalition members here release the demographic and legal research establishing the claim of disparate impact. Note that since the claim was settled prior to litigation being filed, no court has ruled on the arguments set forth here.The BrooklynSpeaks sponsors hope the material presented here contributes to a better understanding of how commitments for public goods made as part of a development project agreed upon by government and private parties may intersect with civil rights laws.
This content is provided for informational purposes only, and is not meant as legal advice.
Background
The Atlantic Yards project was approved by the New York State Public Authorities Control Board in December 2006 under a general project plan and following an environmental review process that had each assumed a ten-year construction period, consistent with developer Forest City Ratner’s public statements at the time.
In September 2009, ESDC approved a modified general project plan that allowed the developer up to twenty-five years to complete Atlantic Yards, including the project’s promised affordable housing. A group of BrooklynSpeaks sponsor organizations filed suit in November 2009 claiming that the twenty-five year build out was approved without the required environmental review. In July 2011, a New York State Supreme Court ruled in favor of the BrooklynSpeaks petitioners, and ordered the State to prepare a supplemental environmental impact statement (SEIS).
Demographic analysis
The public review process for the SEIS began in January 2013. As part of their response to the draft scope of the SEIS, the BrooklynSpeaks sponsors studied the demographic trends taking place in Brooklyn community districts 2, 3, 6, and 8—districts whose residents would receive preference in the lotteries for the affordable apartments to be provided at Atlantic Yards. They found that a delay of fifteen years in the completion of the project’s affordable housing would result in far fewer African-American residents being eligible to receive preference in the Atlantic Yards housing lotteries.
Subsequent research commissioned from Dr. Lance Freeman further quantified and substantiated the projected displacement of members of the four districts’ African-American population. Dr. Freeman’s analysis is provided here for reference.
Legal research
The BrooklynSpeaks sponsors retained counsel from the Urban Justice Center and Wilmer Hale to determine whether the marked decrease in African-Americans eligible for affordable housing preference at a delayed Atlantic Yards project constituted a violation of civil rights law. The legal team helped draft the attached motion demonstrating a disparate impact to the African-American population of Brooklyn community districts 2, 3, 6 and 8, and seeking an injunction to enjoin the disparate impact. The motion was prepared but not filed, and is presented here for reference. It outlines the legal argument under civil rights laws, and cites supporting case law. (The names of petitioners and respondents have been redacted for privacy.)
