A federal judge in White Plains today found that the Town of Greenburgh failed to respond in a timely manner to a developer’s $26 million housing discrimination lawsuit which seeks, among other things, to bar Town Supervisor Paul Feiner from certifying a petition to allow residents of Edgemont to hold a vote on whether to incorporate as Greenburgh’s seventh village.
The court issued a stinging nine-page ruling castigating Town Attorney Timothy W. Lewis for shirking his responsibilities to respond to a federal lawsuit. Mr. Lewis said it was all the fault of an unnamed junior lawyer in the Town’s legal department.
“Frankly, it is shocking that in a conversation in which a junior lawyer informed his or her boss that he or she could not complete a task assigned two weeks before, the junior lawyer did not mention the looming deadline and the boss, knowing he or she would have to staff the case, did not ask,” said United States District Judge Cathy Seibel.
“Even if Mr. Lewis did not know the exact date the answer was due, he had discussed the case with the Town Board two weeks earlier and thus had to know that the 21-day deadline was looming. It would have been a simple matter to calculate the exact date,” the court said.
“Moreover, it appears that Mr. Lewis waited another full week to retain counsel, when he had to have known that the deadline to respond to the Complaint had to be coming up rapidly, if it had not already passed.”
The Town’s failure to respond to the complaint in a timely manner was ironic because, as the Court points out, “Mr. Lewis had been served with a courtesy copy of the Complaint on October 14, 2016,” and Mr. Feiner that weekend circulated copies of the complaint to Edgemont residents he knew were opposed to Edgemont’s incorporation.
The judge ruled that because of the Town’s failure to come up with a legitimate excuse for not responding to the lawsuit when it should have, the Town would not be permitted to seek dismissal of the lawsuit, but would instead have to answer the suit’s allegations by January 18, 2017.
All other defendants were meanwhile given permission at a hearing on December 9, 2016 to file motions to dismiss the lawsuit. Under that order, the developer was given leave, if it chooses, to file an amended complaint by February 17, 2017; and all defendants (except the Town) were given leave to file their motions to dismiss by March 31, 2017.
Based on the court’s briefing schedule, the issue of whether or not the case should be dismissed as a matter of law may not be decided until late 2017, which means it will likely have no impact on Edgemont’s petition to incorporate, which is expected to be filed in early 2017.
Today’s court ruling nevertheless gives the Town a little more than two weeks to answer a 79-page complaint consisting of 313 numbered paragraphs, even though the complaint itself is likely to be superseded – and the Town will have to respond a second time.
The plaintiff, developer S&R Development Estates, is seeking to build a 37-apartment complex on a 2.26 acre parcel off Dromore Road in Edgemont near the Greenburgh Nature Center.
On October 14, 2016, S&R filed a $26 million federal housing discrimination lawsuit against the Town claiming that it has thus far been denied the right to build because of alleged racial bias.
The suit also seeks to bar Edgemont from incorporating because the developer claims that a village government elected by the Edgemont residents would vote to re-zone the property so that apartments could not be built there.
Also named as defendants in the suit are a group of cloistered Edgemont nuns, known as the Sisters of the Blessed Sacrament, whose convent is on an adjoining six-acre lot, as well as the Edgemont School District and the Greenburgh Nature Center.
The nuns were sued because they are refusing in separate state court proceedings to waive enforcement of a private 100-year old deed restriction that bars the Dromore developer from building apartments on their property. The school district, which also owns property subject to the same deed restriction, is being sued for having filed papers in support of the nuns’ position in state court. The nature center is being sued for having expressed opposition to the S&R project.
At the hearing on December 9, United States District Court Judge Cathy Seibel granted the Sisters leave to file a motion to dismiss S&R’s lawsuit on the ground that it fails to state a claim for relief. A transcript of that hearing is attached.
Bob Bernstein, ECC president and attorney for the Sisters, one of whom is African American and Latina, argued that the plaintiff – two wealthy white lawyer-brothers from Harrison, N.Y. – lacked standing to sue for racial discrimination. He also said that there were no legal grounds from which to infer racial bias because the deed restriction is race-neutral, one third of Edgemont’s housing stock already consists of multifamily housing, and there are already 120 apartments along Central Avenue bordering S&R’s property.
Courts have inferred racial bias in federal housing discrimination suits, he said, when a municipality has engaged in exclusionary zoning to bar construction of multifamily housing altogether or where such housing is permitted, but only in segregated neighborhoods, and neither circumstance could be alleged here.
The school district and the nature center were also granted leave to file motions to dismiss.
The Town defendants include the Town itself, the Town Board, the Town’s Comprehensive Plan Steering Committee, the Department of Community Development and Conservation, the Town’s Planning Board and Zoning Boards, respectively, and Mr. Feiner and CPSC chair Francis Sheehan.