A Chicago federal judge has cleared federal lawyers to continue their housing discrimination lawsuit against the village of Tinley Park over the fate of a low-income housing development, saying the task of filing such lawsuits can be delegated to other lawyers within the Department of Justice if the office specifically authorized by federal law to oversee such enforcement actions is vacant.
On July 18, U.S. District Judge Sara L. Ellis sided with the U.S. Department of Justice on that question, rejecting Tinley Park’s request to dismiss the lawsuit with which the federal government has slapped the village over its handling of the housing project known as The Reserve.
Judge Ellis also directed the village to formally respond to the federal action by Aug. 18.
The ruling comes about eight months since the Justice Department under then-President Barack Obama filed suit, alleging the village violated federal law in refusing to allow a developer to build an apartment complex in downtown Tinley Park specifically marketed toward “low, very low and extremely low income households.”
Just weeks after the election of Republican Donald Trump as the next President of the United States, the Obama Justice Department, under then-Attorney General Lorretta Lynch and former U.S. Attorney Zach Fardon, sued Tinley Park over the southwest suburb’s refusal to approve The Reserve development.
The legal conflict over that development traces back to February 2015, when a developer identified as Buckeye Community SixtyNine LLP submitted plans for The Reserve to the village. 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” and “would be financed through the federal Low Income Housing Tax Credit program.”
Shortly after, the Tinley Park planning department found The Reserve met the legal requirements of a special community development plan and ordinance, known as “the Legacy Code,” adopted in 2009. As such, the federal government has asserted, the proposal did not require a vote by the village board to secure permits.
The development director over the village’s planning department at that time, Amy Connolly, has since resigned, after she was placed on leave. The village has also since sued Connolly, claiming she misled village officials in that conclusion, and wrongly declared the project met the standards, when it did not, because it lacked any proposals for ground floor commercial space.
However, after plans for The Reserve became public, opposition arose from village residents. The village board then essentially shelved the plan, sending it back to the planning department for further review, where the proposal has remained docked.
Following that decision, Buckeye sued the village, leading to a settlement deal under which the village paid the developers $2.75 million.
But in late 2016, after the election but before the inauguration of Donald Trump, the Justice Department brought its lawsuit, accusing village officials of buckling to racism in the community, as federal prosecutors alleged the development would likely be largely populated by African American tenants.
“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.”
The village responded with a motion to dismiss, asserting the Justice Department didn’t have the authority under the Fair Housing Act to file suit when it did. Specifically, the village argued, Vanita Gupta, who is listed in the federal complaint as “Principal Deputy Attorney General Civil Rights Division,” should not have been able to bring the action because the FHA authorizes only the “Assistant Attorney General, Civil Rights Division,” to initiate such actions.
At that time, that specific office was vacant, the village asserted.
In response, the Justice Department 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.”
In her ruling, Judge Ellis largely backed the Justice Department’s argument.
While conceding the village’s point, the judge noted the FHA does not signal any intent by Congress to restrict the ability of others within the Justice Department to bring such actions, if acting as a delegate of the Assistant Attorney General, Civil Rights Division.
The laws at issue in this case, she said, “do not present evidence of a congressional intent to limit delegation to a subordinate federal officer.”
“The text of the statute and of the regulation does not explicitly address and limit delegation to certain officials,” the judge said. “Furthermore, the legislative history does not suggest a congressional intent to limit delegation of authority to subordinates.
“Therefore, the functions governed … are delegable.”
Tinley Park is represented in the action by attorneys with the firm of Kozacky Weitzel McGrath P.C., of Chicago.