Metz v. Herbert
Metz v. Herbert
Opinion of the Court
MEMORANDUM
Pending before the court are two Motions to Dismiss, one filed by the defendant, The Ridge at Antioch, Limited Partnership (the “Ridge”) (Docket No. 14), and one filed by the remaining defendants, the Metropolitan Government of Nashville and Davidson County and William B. Herbert, IV, in his official capacity as Zoning Administrator (collectively, “Metro”) (Docket No. 17), to which the plaintiffs have filed a single Response in opposition (Docket No. 18). For the reasons discussed herein, the defendants’ motions will be granted.
BACKGROUND & PROCEDURAL HISTORY
This housing discrimination action was filed on November 18, 2016. (Docket No.
The allegations in the Complaint center on two types of alleged misconduct by Metro: 1) approving the Ridge’s development plans, despite environmental concerns regarding the level of toxins in the soil on the PUD site and the susceptibility of the topography of the site to sinkholes, and 2) approving ongoing changes to the Ridge’s development plans (including the shifting of conditionally approved residential units from one part of the development site to another), without subjecting those changes to review by the Metropolitan Council. The Complaint specifically alleges that these actions violate Metro’s own official policies and that Metro has committed these violations in a discriminatory manner due to the racial composition of the plaintiffs’ neighborhood. The Complaint further alleges that the Ridge was aware of thése discriminatory practices by Metro and has taken advantage of them for its own economic benefit. According to the Complaint, the Ridge’s evolving development plans would not have been approved by Metro under the same conditions had the development project taken place in a predominantly Caucasian area of the county. Again, the Complaint, however, does not make any specific factual allegations about development projects in other areas of the county that have been treated differently by Metro.
With respect to the environmental concerns, the Complaint makes the general allegation that levels of certain toxins have been found in the PUD site soil that could cause health concerns both for neighbors of the site during the development and, later, for residents. The Complaint also alleges that the propensity for sinkholes could pose both economic and safety concerns for the site itself and for adjacent properties. The Complaint does not, however, raise any specific factual allegations as to whether or how these environmental concerns are being addressed by Metro and/or the Ridge, nor do they cite any environmental regulations that allegedly have been, or stand to be, violated. Moreover, the Complaint does not make any
With respect to the lack of review by the Metropolitan Council of ongoing changes to the Ridge’s development plans, the plaintiffs point to the official written policies of Metro’s Planning Commission for how to respond to requested changes to development plans after an initial conditional approval has been granted by the Council. According to the Complaint, these official policies permit certain types of minor changes to be treated as “revisions” that can be approved by the Commission alone but require other types of changes, such as those that would change the access to public streets, to) be reviewed again by the Council as “amendments” to the development plan before approval is given.
The Complaint purports to bring claims for violations of the following laws, without specifying which claims are brought against which defendants: the Civil Rights Act, 42 U.S.C. §§ 1981 (“Section 1981”), 1982 (“Section 1982”), and 2000d et seq. (“Title VI”); the Fair Housing Act of 1968, 42 U.S.C. §§ 3601 et seq. (the “FHA”) (in particular, the Complaint names FHA sections 3604(a), 3604(f), and 3617); the due process and equal protection clauses of the United States and Tennessee Constitutions;
On January 20, 2017, the Ridge filed its' Motion to Dismiss (Docket Nb. 14), along with a Memorandum in support (Docket No. 16). On the same day, Metro also filed a Motion to Dismiss (Docket No.
LEGAL STANDARD FOR MOTION TO DISMISS
In deciding a'motion to dismiss for failure to state a claim under Rule 12(b)(6), the court will “construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff.” Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007); Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir. 2002). The Federal Rules of Civil Procedure require only that a plaintiff provide “a short and plain statement of the claim that will give the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The court must determine only whether “the claimant is entitled to offer evidence to support the claims,” not whether the plaintiff can ultimately prove the facts alleged. Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 511, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)).
The complaint’s allegations, however, “must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). To establish the “facial plausibility” required to “unlock the doors of discovery,” the plaintiff cannot rely on “legal conclusions” or “[tjhreadbare recitals of the elements of a cause of action,” but, instead, the plaintiff must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). “[0]nly a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 679, 129 S.Ct. 1937; Twombly, 550 U.S. at 556, 127 S.Ct. 1955.
This is a unique case in that the claims at issue are for racial discrimination in the context of housing and municipal zoning, yet the claims are not based on allegations that the plaintiffs themselves have been denied access to housing or that their properties have been directly subject to the zoning decisions being challenged.
As best the court can discern, the plaintiffs are seeking redress for what is essentially an economic interest in the value of their properties that they allege has been injured by the decision to allow low-income housing to be developed nearby. As discussed more fully below, any such interests are not protected by Section 1982, the FHA, or the substantive due process protections of the 14th Amendment to the United States Constitution. The procedural due process claim has not been adequately pled because the Complaint does not allege sufficient facts to find that the plaintiffs have been denied the opportunity to be heard in connection with the loss of a protected property right. The equal protection claim against Metro is the most fitting claim in this action, to the extent that the plaintiffs are alleging that their economic interests have been treated differently by Metro than the economic interests of homeowners in predominantly Caucasian neighborhoods within Davidson County. As discussed more fully below, however, this claim, too, has not been sufficiently pled because the record is devoid of any factual allegations that similarly situated neighborhoods have, in fact, been treated differently by Metro with respect to any of the alleged misconduct, let alone that any such differential treatment can be attributed to race.
I. Section 1982 Claims
Section 1982 provides as follows: “All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.” The Sixth Circuit has explained that Section 1982 protects individual interests in access to real property and prohibits the denial of such access based on discrimination motivated by race. Moniz v. Cox, 512 Fed.Appx. 495 (6th Cir. 2013). While the Sixth Circuit has acknowledged that this right includes the right for non-owners, such as renters and visitors, to access property (see U.S. v. Brown, 49 F.3d 1162 (6th Cir. 1995)), there is no authority to suggest that Section 1982 protects the bi
As discussed above, the problem is not that the plaintiffs are a racially mixed group. Rather,' the problem is that the plaintiffs are not alleging that they have been denied the right to access real property. . The plaintiffs cite the Sixth Circuit case Winston v. Lear-Siegler, Inc. for. the proposition that white plaintiffs may sue under Section 1982, as Winston discusses a Supreme Court .case in which a white homeowner successfully .sued the residential community to which he belonged for prohibiting him from assigning his interests to a black tenant.
The plaintiffs also cite Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968), for the proposition that Section 1982 should be read broadly. Jones, however, is an action that arises from a developer refusing to sell a home to an African American plaintiff, and the Supreme Court interpreted Section 1982 to give rise to liability on the part of private developers-in this - situation, rather than limiting Section 1982 liability to municipalities. Again, however, the same right was being vindicated as in.the other Section 1982 cases—the right to access real property. The broadening of the statute simply related to which parties could be held liable for upholding this right. The instant case, to the contrary, again simply does not involve any claim that the plaintiffs were denied access to housing and seeks to broaden Section 1982 well beyond the bounds of rights protected by the statutory text.
Finally, it is important for the court to note that one of the primary goals of Section 1982 is clearly to ensure that racial minorities have the opportunity to live in safe, affordable housing in any area in which they desire to live. Federal support for municipalities that allow the development of low-income housing and for devel
For these reasons, the court finds that the plaintiffs’ have not adequately pled a Section 1982 claim, and this claim must be dismissed.
II. FHA Claims
Similarly, the rights protected by the FHA do not apply to this action for the same reasons. Like Section 1982, the FHA also protects access to housing. The plaintiffs cite three particular sections of the FHA that allegedly have been violated by the defendants: sections 3604(a), 3604(f), and 3617. Section 3604(a) renders it unlawful to “refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.” Section 3604(f) additionally prohibits discrimination in access to housing on the basis of disability. Section 3617 renders it unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by sections 3603, 3604, 3605, or 3606 of this title.!’ The remaining provisions of the FHA regulate conduct by sellers and lessors of real property and by their agents and brokers that would inhibit access to residential property on the basis of race or other protected categories. There are no provisions of the FHA that address economic interests in the value of one’s real property, which is the right the plaintiffs seek to vindicate in this action.
As the plaintiffs correctly point out, the Supreme Court has held that the FHA can support a disparate impact claim for “unlawful practices including zoning laws and other housing restrictions that function unfairly to exclude minorities from certain neighborhoods without any sufficient justification.” Texas Dep’t of Hous. and Cmty. Affairs v. Inclusive Cmtys. Project, Inc., — U.S. —, 135 S.Ct. 2507, 192 L.Ed.2d 514 (2015). Again, however, the claim at issue in this action is not about anyone being excluded from a neighborhood, and it is certainly not about the plaintiffs having been excluded. To the' contrary, this action arises from allegations that access to homes in the plaintiffs’ neighborhood is being granted to prospective low-income residents through the development of affordable housing. The only way an FHA action might arise in the context of the placement of low-income housing in the plaintiffs’ neighborhood is if there were allegations that such housing is, in fact, being excluded from other areas in Davidson County on the basis of the race (or other protected status) of the prospective residents. Even then, this would not give rise to a right of action by the plaintiffs, who are not themselves the prospective residents of the low-income housing being built.
In any event, as discussed above, there are no such allegations here, aside from the vague and conclusory assertion that the plaintiffs’ neighborhood is being treated differently than other unnamed areas in Davidson County that are comprised
The plaintiffs cite Trafficante v. Metropolitan Life Ins., Co., 409 U.S. 205, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972), for the proposition that the FHA should be read broadly to support claims by plaintiffs who are not a part of an FHA-protected class. Trafficante, however, involved claims that were about the exclusion of prospective non-white residents from a housing complex based on their race, even though the action itself was brought by white residents of the complex who claimed they were injured by the denial of a racially integrated community.
For these reasons, the plaintiffs have failed to sufficiently plead a claim under the FHA, and this claim must be dismissed.
III. Federal Constitutional Claims
As an initial matter, the plaintiffs’ federal constitutional claims do not apply to the Ridge and are understood to be brought only against Metro, pursuant to 42 U.S.C. § 1983, for the following reasons. Private actors are generally not liable for constitutional violations unless they acted under color of state law. See Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974). The Sixth Circuit has held that, in order for a private entity to be hable for a 14th amendment violation, the entity’s action must be attributable to the state on one of three grounds: 1) it is an action that is traditionally exclusively reserved to the state; 2) the action was coerced by the state to such an extent that it can be found to be a compulsory state action; or 3)
With respect to their due process claims against Metro, the plaintiffs appear to argue that both their procedural and substantive due process rights have been violated. As for their procedural due process claim, the plaintiffs argue that, because Metro acted in a manner that is inconsistent with its official policies in approving the Ridge’s changing development plans without Council review, the plaintiffs had no notice that Metro would act in this manner and were, therefore, unable to be heard in opposition to Metro’s decision-making practices. The plaintiffs, however, cite no authority for the proposition that they are entitled to be given notice of Metro’s internal decision-making practices or to have the opportunity to oppose them. To the extent that the plaintiffs were entitled to be heard with respect to Metro’s actual zoning decisions regarding the PUD, including its decisions to approve changes to the Ridge’s development plans, there are no allegations 'in the Complaint to suggest that they were denied such an opportunity. Indeed, as the defendants point out, the minutes of Planning Commission meetings that are attached to the Complaint appear to suggest that there was an opportunity for the plaintiffs to be heard, in that members of the public were welcome to speak at Planning Commission meetings where the zoning decisions at issue were discussed. (See Docket Nos. 1-2, 1-3, 1-4, 1-6, 1-31, 1-32, 1-33, 1-35, 1-36, 1-37, 1-38.) More importantly, the plaintiffs raise no particular allegations to suggest that they were denied such an opportunity. While the plaintiffs allege that certain changes to the Ridge’s development plans were treated as revisions rather than amendments and were, therefore, not subject to review by the Metropolitan Council, the plaintiffs make no allegations that this in any way affected their right to be heard with respect to the decisions themselves and how those decisions may have impacted the plaintiffs’ economic interests.
Moreover, the Sixth Circuit has held that procedural due process liability only arises where there is a clear property right that triggers due process protections. See Braun v. Ann Arbor Charter Tp., 519 F.3d 564, 573 (6th Cir. 2008) (“In order to have a property interest in a benefit, a person must have more than a desire for it or unilateral expectation of it; rather, he must have a legitimate claim or entitlement to it”). The only property interest asserted by the plaintiffs is in the value of
With respect to their substantive due process claims, again, the plaintiffs are not actually challenging zoning decisions that affect the use of their own properties but, rather, are challenging zoning decisions about the use of an adjacent parcel of land which might, in turn, affect their property values. The plaintiffs cite Pearson v. City of Grand Blanc, 961 F.2d 1211 (6th Cir. 1992), for the proposition that there may be a substantive due process violation based on arbitrary and irrational zoning changes, but Pearson is about a property owner’s right' to be protected against arbitrary zoning changes that wholly inhibit the use of their property. Pearson does not provide support for finding a substantive due process interest -in the zoning of adjacent properties. Nor do the plaintiffs cite any such authority. As discussed above, it is not at all cléar that the plaintiffs even have the sort of interest in the zoning decisions being challenged here that would give rise to a procedural due process right, let alone the sort of right discussed in Pearson that would allow them to challenge Metro’s decisions on substantive due process grounds.
Finally, the plaintiffs assert an equal protection claim against Metro on the grounds that their neighborhood has been treated differently from other similarly situated neighborhoods on the basis of the neighborhood’s racial composition. The Sixth Circuit has held, however, that such a claim requires' a showing that similarly situated persons were treated differently. See Braun, 519 F.3d at 574-75 (citing Silver v. Franklin Twp., Bd. of Zoning Appeals, 966 F.2d 1031, 1036 (6th Cir. 1992)). As stated above, the plaintiffs have not alleged any such differential treatment of other similarly situated neighborhoods. As a result, the plaintiffs have not sufficiently pled an equal protection claim against Metro.
For these reasons, the plaintiffs’ claims for violations' of the 14th Amendment to the United States Constitution must be dismissed.
IV. State Law Claims
Finally, the court finds that there are two grounds for dismissal of the
Second, even if the court were to exercise supplemental jurisdiction over the plaintiffs’ state law claims, it is apparent that these claims could not survive the pleadings stage for the same reasons that the federal claims did not survive. Claims brought under the THRA are analyzed in the same way as are the corresponding federal law claims. See Regnier v. Metro. Gov. of Nashville, No. M2G04-00351-COA-R3-CV, 2006 WL 1328937, * 7 (Tenn. Ct. App. May 11, 2006) (“It is clearly the law in Tennessee that federal case law on Title VII and related civil rights statutes may be used to interpret the THRA since the stated purpose and intent of the THRA is to execute the policies embodied within the federal anti-discrimination acts.”) (citing Tenn. Code Ann. § 4-21-101)(a)(l)); Bobo v. United Parcel Service, Inc., 665 F.3d 741, 757-58 (6th Cir. 2012). Constitutional claims under the Tennessee Constitution are likewise analyzed in the same manner as the federal constitutional claims. Riggs v. Burson, 941 S.W.2d 44, 52 (Tenn. 1997), First Cmty. Bank, N.A. v. First Tennessee Bank, N.A., 489 S.W.3d 369, 383 (Tenn. 2015). Accordingly, the same grounds for dismissal apply with equal force to the plaintiffs’ state law claims as to their federal claims.
For these reasons, the THRA and Tennessee Constitution claims will also be dismissed.
CONCLUSION
For the foregoing reasons, the defendants’ Motions to Dismiss will be granted, and this action will be dismissed in its entirety without prejudice.
An appropriate order will enter.
. It is not entirely clear from the record which types of changes warrant Council review and which do not, as per Metro’s official written policies, but the plaintiffs allege that at least some of the changes made by the Ridge should have' been reviewed by the Council but were, instead, approved by the Planning Commission without Council review.
. The Complaint does not specifically reference 42 U.S.C. § 1983, though, as discussed below, this is clearly the avenue under which a claim for violating the due process or equal protection clauses of the United States Constitution can be brought against Metro as a municipality.
. Indeed, this is consistent with the court’s finding herein that none of the local level regulations named in the Complaint appear to give rise to a private right of action. Nor does the “pending legislation doctrine,” identified by the Tennessee Supreme Court in Harding Academy v. Metropolitan Government of Nashville and Davidson County, give rise to a private right of action in this context. 222 S.W.3d 359 (Tenn. 2007). To the contrary, the doctrine provides a defense to government defendants who have denied an otherwise appropriate request for a permit or zoning change, where pending legislation would be undermined by granting the request. Id.
. In fact, the court notes that Section 1981protects the right to make and enforce contracts, and there are no allegations here that the plaintiffs have suffered any contractually based injury. Likewise, Title VI protects access to programs receiving federal funding. While the allegations in the Complaint suggest that the development at issue in this action may have received federal funding in the form of LIHTCs for the Ridge, there are no allegations to suggest that the plaintiffs were themselves denied access to such tax credits or were denied access to the LIHTC-eligible housing in development by the Ridge that was the subject of the federal funding.
. To the extent that the plaintiffs claim that they have been or will be directly injured by the environmental impact of the development, as noted above, they have not alleged any specific environmental regulations that have been violated.
. Winston itself involves the right of a white employee to sue an employer under Section 1981 based on retaliation for defending the. rights of a black co-worker. The plaintiffs cite Winston, however, for its discussion of Sullivan.
. Read generously, the Complaint could be said to allege that the plaintiffs’ access to their properties has been infringed due to the environmental concerns raised. The plaintiffs do not, however, allege that they have been unable to use their properties in the intended way; nor, again, do they cite any particular environmental regulations that have been violated. Moreover, it would be quite a stretch to interpret Section 1982 to protect a homeowner’s right to be free of any environmental concerns that have been caused or unaddressed due to the homeowner’s race, and the plaintiffs have provided no authority for doing so.
. Moreover, Trafficante was subsequently overturned by Thompson v. North American Stainless, LP, 562 U.S. 170, 131 S.Ct. 863, 178 L.Ed.2d 694 (2011), which held that only parties whose rights under the FHA have been aggrieved may bring suit, not others who were tangentially injured by the violation.
. At most, the Complaint alleges that the Ridge had inside information about Metro's internal practices and used this information to its advantage in getting its development plans approved. This does not create a symbiotic relationship.
Reference
- Full Case Name
- George METZ, Marilyn Metz, Aubrey Pearson, Jr., Jacqueline Pearson, Berry Wright, and Evelyn Wright v. William B. HERBERT, IV (in his official capacity as Zoning Administrator) Metropolitan Government of Nashville and Davidson County, acting by and through its Planning Commission and Board of Zoning Appeals and The Ridge at Antioch, Limited Partnership
- Cited By
- 2 cases
- Status
- Published