2nd Federal Suit Filed – Moceri/DM Investments & Joan Buser file Fair Housing Complaint against Oakland Township

Thursday, 12/11/14, Developer Moceri/DM Investments and former Township Supervisor Joan Buser filed suit in Federal Court against Oakland Township for Discrimination under the Fair Housing Act and the Americans with Disabilities Act. This complaint is different from the Paralyzed Veterans suit  in that it has increased the focus on the actions and words of not only our township government but, also people in our community.  It also extends the time frame of the evidence back to 2005 with our community’s reaction to the Harvest  Corners development proposal.

The suit’s “Factual Allegations” section lists evidence that the Township’s Fair Housing responsibilities were well known and the new Board of Trustees  actions did not live up to those responsibilities:

  • No land zoned for multi-family housing
  • No Land zoned for housing the elderly and/or disabled
  • The Residential Multiple zoning limitations make any development of affordable congregate care and assisted living housing for the elderly and/or disabled impracticable.
  • The Township’s need for and lack of housing opportunities for the elderly and disabled have been acknowledged by the Township’s planning consultant, Planning Commission and the former Board of Trustees
  • The Master Plan recognizes the need for housing the elderly and/or disabled
  • The Township’s need for and lack of housing opportunities for the elderly and disabled have been acknowledged by the The Oakland County Zoning Coordinating Committee has cautioned the Township that the Township’s zoning ordinances are exclusionary and in violation of the Michigan Zoning Enabling Act and that the Township needs to provide housing opportunities for the elderly and disabled.

The suit provides an overview of applicable law:

a) The lawsuit explains that Americans with Disabilities Act:

“provides that no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities or a public entity, or be subject to discrimination by any such entity.”
“Under the ADA, a governmental entity engages in a discriminatory practice where the entity refuses to make a reasonable accommodation to rules, policies, practices or services when such accommodation may be necessary to afford a person with a disability equal opportunity to use and enjoy a dwelling.”

b) The lawsuit explains that The Fair Housing Act:

“forbids discrimination against the disabled in housing and further states: It shall be unlawful for any person to refuse to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford a handicapped person equal opportunity to use and enjoy a dwelling unit, including public and common use areas.”

c) It is important to understand that, while we, as individuals, may think of the word “disabled” mostly in terms of wheelchair accessibility and blindness, the Code of Federal Regulation law takes a much broader view that greatly expands the group of people who are protected:

“Physical or mental impairment means (A) any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive, digestive, genitourinary; hemic and lymphatic; skin; and endocrine; or (b) any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. [42 C.F.R. 84.3(2)(i).]”

The lawsuit has a strong emphasis on discriminatory intent by the Township and its residents

“Notwithstanding the Township’s lack of and need for suitable housing for the elderly and disabled, the Township’s current residents have rebuffed repeated efforts to modify or gain exceptions to its extremely restrictive zoning regime. A relatively small and uninformed, but impassioned and vocal, minority of residents have repeatedly taken control sufficiently to stymie all efforts to introduce fair housing to the Township. That minority of residents are determined to reserve the opportunity to reside in the Township only to those who can afford to live in and own the luxury housing which currently characterizes the Township stock of housing.”

Harvest Corners.

The suit talks about the failure of past fair housing efforts – Harvest Corners.

During the years 2005 – 2008 Dominic and Frances Moceri affiliated companies proposed the Harvest Corners development which included various types of single family housing, some retail stores and housing for the elderly and disabled. After almost 3 years of hearing public comment and deliberating the Planning Commission and Board of Trustees approved the rezoning to allow the Harvest Corners development. The suit explains what happened next:

“An impassioned and misinformed minority of residents demanded a referendum on the zoning change and submitted the required petition. Predictably, in an off-cycle vote those who opposed the rezoning came to the polls in greater numbers than did those who supported the plan. The referendum reversed the decisions of the Planning Commission and Board of Trustees and preserved a zoning regime which bars the elderly and disabled from the Township unless they can live in a large luxury home and hire their own assistance.”

The suit reports that a number of Oakland Township residents have voiced opposition to Harvest Corners

a)   “We don’t need senior development. If people want condos they can go to Auburn Hills, it’s not that far away.”
b)  “I don’t think it’s the responsibility of citizens of Oakland Township to bring policemen, firemen, displaced persons from Detroit or New Orleans, whatever out to Oakland Township to live.”
c)  “… I sell a national brand; I am with Mr. Fox. This is low income housing, basically, compared to what we worked for.”
d)  “We don’t have a requirement to be inclusive. We can be exclusive.”

Blossom Ridge

The lawsuit describes the citizen’s and Township’s actions before the 2012 election regarding Blossom Ridge the current fair housing effort.

“Township residents who filled the Township meeting room and made dire predictions about wandering Alzheimer’s patients, “workers” from outside the Township, traffic congestion, diminished property values, and the loss of the Township’s special character and exclusivity.”

“Some of the most vehement fear mongers have since become elected or appointed Township officials”.

The Lawsuit quotes citizens publications and public comments in Township meetings:

Township Treasurer candidate, Jeanne Langlois, has said the Township residents are not asking for this type of senior housing and are content to look outside the Township for this.

Another Board of Trustees candidate said that lack of senior housing is “one of the things that make Oakland Township special – that it doesn’t have a lot of things other communities have.”

“six in ten people with Alzheimer’s disease will wander.”

“will be a rental development, a business masquerading as senior housing.”

“Recent neighboring property sales continue to fall – your home’s value – and potential buyers are now factoring in BLOSSOM RIDGE.”

“This type of development changes the whole temper of this area.”

“Your neighborhood could be next.”

“This request is based on greed, not need. We do not need a senior center in this area. My message to the Township Board is do the right thing and reject this proposal.”

“Mr. Moceri and the planning committee need to know that we will take all necessary steps to make this proposal fail. We do not need this type of development in a high scale residential area as it will continue the drop in home values that is already taking place.”

“this proposal did not fill a void and does not do anything towards keeping the prosperity and integrity of why the residents moved to those subdivisions.”

John Giannangeli commented at the May 8, 2012 Board meeting, saying the project “is a commercial 24/7 business in the middle of the most populous part of the township,” and a “bait and switch senior housing to assisted living.”

“I believe that Oakland Township never intended for such a development as it is a “commercial” development and it is not appropriate for our lovely community.”

At the September 10, 2013 Board of Trustees meeting, AnnaLisa Hollenbeck stated that the developer, HUD and DOJ are terrorists and terrorizing the citizens of Oakland Township with their discrimination complaint and investigation.

 Events prior to the 2012 election

The Township Planning Commission recommended approval of Blossom Ridge with 282 mixed density units in February, 2012.

Prior to the final hearing before the Board of Trustees, Dominic J. Moceri met with persons claiming to represent the hostile residents. He agreed to lower the Blossom Ridge unit count from 282 units to 238 units, and they agreed to drop their opposition.

The rezoning with a PRRO for 238 units with more than 50% open space was then approved by the previous Board of Trustees on August 14, 2012.

August 15, 2012  the developer filed an application for Special Accommodation Use.

On Oct. 9 2012 Recommended granting the Special Accommodation Use (SAU) application made by the developer.

The Board delayed its vote on the SAU until after the referendum.

The 2012 Election is described in the suit:

“In an off cycle election angry residents voted from office all the Trustees who had voted for Blossom Ridge and replaced them with some of the most vehement opponents of Blossom Ridge. The new Township Board has stacked the Planning Commission, Zoning Board of Appeals and two new Board of Trustee appointments so that all the Township’s governing bodies are comprised solely of persons opposed to Blossom Ridge and congregate housing for the elderly and disabled.”

“Some residents, including one later appointed to the Township Board, filed a petition for a referendum to cancel the previous Board’s rezoning. By Michigan statute the petition alone is sufficient to block the Blossom Ridge rezoning until a referendum is held.”

“The newly elected Township Board sought five legal opinions before reaching the decision to submit the rezoning to the Oakland County Coordinating Zoning Committee (“County Zoning Committee”) for review and  recommendation.”

“The County Zoning Committee staff reported that Blossom Ridge would be consistent with the Township Master Plan, was a residential use and not a commercial use, would create less traffic than alternate uses, and would be in harmony with surrounding residential uses in Oakland Township and in neighboring towns. The staff also observed that Oakland Township’s zoning regime’s exclusion of multi-family housing violates Michigan law. The County Zoning Committee recommended approval of Blossom Ridge by a unanimous vote.”

The Lawsuit discusses the Township’s referendum on the Blossom Ridge re-zoning:

” The County Zoning Committee approval left the Township Board with no more excuses for delaying the referendum, which was then held on August 6, 2013, in an off cycle election. ”

” Of the Township’s roughly 12,000 eligible voters, about 2800 voted. Approximately 2,000 voted to strike down the previous Board’s rezoning, and 800 voted in favor of Blossom Ridge. ”

“The Constitution’s Due Process and Equal Protection provisions and the anti-discrimination statutes cited in this Complaint protect individuals from the oppression of majorities. That Blossom Ridge was defeated by a referendum adds nothing to the strength of the Township’s position. The disabled are entitled to protection under law despite the notion of the “will of the people,” frequently cited by Blossom Ridge adversaries”

“As a result of the referendum petition and then referendum the Township remains as it was, a Township of thirty-six square miles burdened by a zoning regime which effectively bars all possibility of community housing providing the special services needed by the elderly and disabled.”

The Plaintiff discusses their Application for Special Accommodation Use on Aug. 15, 2012

“The Township’s Special Accommodation Use ordinance states: This section is intended to authorize the grant of relief from the strict terms of the ordinance in order to provide equal housing opportunities particularly suited to the needs of persons entitled to reasonable accommodation under law and to encourage innovation in land use and variety in design and layout.”

“The new Board then delayed the referendum… more than a year later,… on November 13, 2013 the Supervisor recommended denial.”

“The Recommendation lacked any hint that the Defendant is bound by the FHA or that its governing body and residents must set aside their  convenience and personal preferences so that the disabled can participate fully in the community.”

“At a meeting held on December 10, 2013, the Board of Trustees… voted unanimously (6-0 with one Trustee having recused herself) to deny the reasonable accommodation request under the SAU Ordinance “for the reasons stated in Supervisor Gonser’s recommendation to the Board.””

“Neither the Supervisor nor any Board member offered any reasonable evidence that the requested accommodation was “unreasonable” or imposed  any significant burden on the Township or its residents.”

The Plaintiffs are asking the Court to:

  1. Declare that Defendant’s exclusionary zoning regime is unlawful in its entirety;
  2. Enjoin Defendant from enforcing its zoning with respect to the Land;
  3. Order that a reasonable accommodation be made permitting construction of 282 units of mixed density multi-family housing in accordance with the plans approved by Defendant’s Planning Commission in February, 2012;
  4. Enter judgment against Defendant for all amounts of compensatory and punitive damages to which Plaintiffs are entitled;
  5. Award Plaintiffs their prejudgment interest, costs and expenses of this action, including reasonable attorney and expert fees;
  6. Retain jurisdiction post judgment to assure that the intent of the Court’s judgment is fulfilled; and
  7. Award any other appropriate relief.

This is a very much summarized recounting of the contents of the lawsuit the full text of which 2014_12_11 Moceri Buser Complaint.

Jim Foulkrod

 

2 thoughts on “2nd Federal Suit Filed – Moceri/DM Investments & Joan Buser file Fair Housing Complaint against Oakland Township

  1. Francis P. Hughes

    Like the veterans (MPVA) lawsuit it is short on facts and long on misrepresentations and remember this mess all started when most of the members of the Planning Commission and most of the members of the Fogler Board of
    Trustees pretended there was no Zoning Ordinance, and ignored it completely pushing through the Blossom Ridge approval which violated the Zoning Ordinance almost every which way one could imagine. Most of the township population still considers it an attempt to warehouse seniors in largely overpriced, cubbyhole apartments in a senior development almost 3 times larger than the average sized senior developments in the
    entire Country These Township officials were voted out of office and/or not reappointed but like a bad headache some of them still linger around spewing their bile at whomever. I prefer the Township manager/position over the
    strong Supervisor. It is nice to have a trained/educated professional in charge when you have what is really a
    large municipality.

    Reply
    1. foulkrj Post author

      Mr. Hughes,
      Re: your above comments about “pretending there was no Zoning Ordinance”, “ignored it” and “violated the Zoning ordinance almost every which way”. I have re-printed the final Planning Commission motion to recommend approval of the Proposed Blossom Ridge development to the Township Board. I authored and made this motion and I stand by the more than 30 points of Ordinance and Master Plan that I reference within it. The motion states how the proposal complies with each of these points of the Zoning Ordinance and Master Plan. Please Mr. Hughes, point out in detail for our readers how I and the people who approved all 30 points of this motion “ignored”, “violated” and “pretended there was no” Zoning ordinance. If you are unable to do so you will have done damage to your reputation as an attorney.

      Motion to Approve Blossom Ridge – Planning Commission – Feb 2012

      The proposal is eligible for the PRRO designation because it offers site specific conditions that are “more strict or limiting” than what would otherwise ordinarily apply under the proposed residential district.
      1. The proposed density is more strict or limiting than the underlying R-M District because it is less dense than what would ordinarily be permitted.
      2. The proposal is also more strict and limiting because the proposed amount of open space is greater than that required by the R-M zoning district.
      3. It is important to acknowledge that while being more strict and limiting in the ways stated above the, proposal is not strictly compliant with other published objective requirements of the R-M district such as but not limited to:
      a. Building length and bulk
      b. Units per building
      c. Number of stories
      d. The minimum square footage required for a residential unit.
      The zoning ordinance does not have specific requirements for the use of Senior Independent and Assisted living. This use is substantially different from the apartment building use that the requirements were designed for.
      We note that the Planning Commission may recommend approval exceptions to underlying regulations per Section 27.04.00, D, 1, a, ii, if the departures are also approved by the Fire Chief and if the departures are consistent with industry standards relative to the proposed use.
      The Fire Chief has indicated the required approval.
      The ordinance instructs us, in this case, to rely on “Industry Standards”. So, accordingly we have gathered information and considered industry standards evident in surrounding communities. We find that the proposal is fully consistent with and, in many ways, exceeds local industry standards.
      The proposal demonstrates compliance with the PRRO Standards found in section 27.04.04, D, 2 of the zoning ordinance:
      1. The development shall integrate the characteristics of the land.
      a. The land is designated in the Master Plan as “Forested” and has a “high” ranking for natural features. The proposal mitigates the loss of trees with plantings of many new trees in affected areas.
      b. The existing ponds will be maintained, the alteration of wetlands will be mitigated within the development.
      c. Large areas of natural features will be preserved.
      2. The development shall be consistent with the Township Master Plan.
      a. The proposed site for the development is designated in the master Plan as a High Density Conservation area.
      b. The Master Plan states that High Density Conservation areas:
      i. Are meant to accommodate a range of housing styles for a variety of age and income levels.
      ii. Are intended to serve as receptors for senior living environments and care services.
      iii. Higher densities than 3 to 5 units per acre may be considered if the effects of that density can be mitigated. For example a senior housing development may be considered if its impacts would be consistent with a less intense development. Our deliberations have demonstrated that.
      c. The Master Plan makes plain the value of maintaining the character of the township and this proposal demonstrates that in the following ways:
      i. It preserves more open space than is generally found in this area of the Township.
      ii. It maintains the view sheds in its surrounding area with building setbacks, berms, landscaping and moving electrical lines underground.
      iii. It gives the appearance of high quality development consistent with its surrounding area.
      3. The proposal is in the public interest because it provides an enhancement to the area as compared to what would be permitted under the current zoning; and such enhancement would not be assured in the absence of the PRRO designation. The enhancements are :
      a. It provides significant open space and natural feature preservation compared to what would be permitted under current zoning.
      b. The proposed use will have less negative impact on peak time traffic than would be expected under current zoning.
      c. It will provide the township with independent and assisted living facilities which currently do not exist in the township.
      4. The enhancements listed above, when balanced against the reasonably foreseeable detriments of the project clearly outweigh those detriments as follows:
      a. The traffic created will have less peak time impact than other uses allowed under the existing or the proposed zoning.
      b. The residential units, while greater in number than would be possible under other allowed uses, will have less impact on the environment due to the smaller size of the units and the lower number of residents.
      5. The conditions related to the special land use criteria are met.:
      Therefore, the Planning Commission recommends to the Township Board approval of the request to rezone the subject property from MRD to R-M PRRO, subject to the following condition:
      1. Clear and explicit age restrictions shall be executed to ensure that the proposed development consists of senior housing, as approved by the Township Attorney.
      2. Regarding landscaping a practice of blending and best management practices with regards to preservation of natural resources consisted with language in the proposed Township woodlands ordinance.
      3. Incorporation of supplemental materials offered by the applicant, including parameters regarding the number of employees to be used in the generation of the PRRO agreement and be a part of the PRRO site plan.
      AYES: CARELS, EDWARDS, FOULKROD, WOLAK and CARTER
      NAYS: SAPUTO and SHULZE
      MOTION: CARRIED

      Reply

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