The fate of a low-income housing development in Tinley Park could yet turn on the question of whether the President of the United States must appoint someone to serve as the overseer of the Department of Justice’s Civil Rights Division for the Justice Department to legally file housing discrimination lawsuits.
In July, U.S. District Judge Sara L. Ellis appears poised to rule on precisely that question, as she considers an attempt by the village of Tinley Park to dismiss a federal lawsuit alleging the village violated federal law in refusing to allow a developer to build an apartment complex specifically marketed toward “low, very low and extremely low income households.”
In late November 2016, in the wake of the election of Republican Donald Trump as the next U.S. President, the Obama Justice Department, under then-Attorney General Lorretta Lynch and former Chicago U.S. Attorney Zach Fardon sued Tinley Park in federal court over the southwest suburb’s refusal to allow the construction of the apartment complex known as “The Reserve.’
According to the federal complaint, a developer identified as Buckeye Community SixtyNine LP submitted plans for The Reserve to the village in February 2015. The proposal showed a development including 47 apartments in a three-story building. The developer told the village the apartments would be marketed to people “making less than 60 percent of area median income.” The apartments would be priced below market “and would be financed through the federal Low Income Housing Tax Credit program.”
The federal complaint said the Tinley Park planning department found The Reserve “met all of the specifications of the Legacy Code,” a special community development plan and ordinance enacted in 2009, and as such, did not require a vote by the village board.
However, after an initial hearing before the Tinley Park Plan Commission - which the DOJ complaint said is empowered under the orinance to approve projects that meet the “Legacy Code” - “community opposition broke out,” with opponents expressing concerns the apartment complex would increase crime and depress housing values in their community.
In response to the opposition – which included 300 community members at a public meeting on the topic – the village board referred plans for The Reserve back to the planning department, ostensibly to allow time for the village to review and amend its zoning rules.
The Justice Department, however, argued in its complaint that the refusal to approve The Reserve is motivated by racism, and violates the federal Fair Housing Act.
“Community opposition to The Reserve was based on discriminatory attitudes towards African Americans and other groups based on race,” the federal lawsuit said. “Tinley Park responded to the race-based opposition by sending the project back to the Planning Department…
“Through its actions with respect to The Reserve … Tinley Park engaged in a pattern or practice of unlawful discrimination and denied rights to a group of persons on the basis of race and color in violation of the Fair Housing Act.”
About two months after the Justice Department filed suit, and following Trump’s inauguration to replace Obama, Tinley Park filed a motion to dismiss, arguing the Justice Department did not have the authority to bring the action under the Fair Housing Act.
According to their motion, Vanita Gupta, who is listed in the federal complaint as “Principal Deputy Assistant Attorney General Civil Rights Division,” did not have the legal authority to bring the action. The Fair Housing Act, the village asserts, authorizes only the “Assistant Attorney General, Civil Rights Division,” to initiate such actions.
In this case, the village asserts, “it would be impossible for the Assistant Attorney General, Civil Rights Division to have supervised the filing of the Complaint, because no person held that job at the time of its filing and no person holds that office today (on Jan. 24, 2017).
“Instead, it appears that lawyers within the Department of Justice are relying on the purported authority of Vanita Gupta, who was formerly the Acting Assistant Attorney General, Civil Division and then the ‘Principal Deputy Assistant Attorney General Civil Rights Division,’ to file this Complaint, although she did not even sign it.”
The complaint noted Gupta could have authorized the complaint within a 210-day window of her appointment as Acting Assistant Attorney General. But that 210-window had passed, the village argued, as her appointment “had not been submitted to or confirmed by the Senate.”
In response, the federal government, through former U.S. Attorney Fardon and T.E. Wheeler, Acting Assistant Attorney General, Civil Rights Division, argued the village had grasped at a technicality, asserting Gupta was, at the time, merely “exercising the delegated authority to supervise the enforcement of federal civil rights laws when she was the highest ranking official in the Civil Rights Division.”
Fardon has since been removed from his post, along with 45 others across the country in a mass action by President Trump. Fardon’s successor has not yet been nominated.
In the weeks since the federal response was filed in March, however, Judge Ellis has denied the village’s request to stay discovery, pending the outcome of the motion to dismiss.
And the judge has also ordered current and former Tinley Park village officials to return federal subpoenas by Aug. 1.
The village is represented in the action by attorneys with the firm of Kozacky Weitzel McGrath P.C., of Chicago.