Hidden Village, LLC v. City of Lakewood (867 F. Supp. 2d 920, 2012)

United States District Court for the Northern District of Ohio 2012-03-30

Citations

Full opinion text

MEMORANDUM OF OPINION & ORDER [Resolving EOF No. 1+9 ]

BENITA Y. PEARSON, District Judge.

I. INTRODUCTION ......................................................927

II. BACKGROUND ........................................................927

A. Parties'.............................................................927

1. Plaintiff and its Tenanb-Youth Re-Entry Program ...................927

2. Defendants .....................................................928

B. Facts ..............................................................928

C. Procedural History ..................................................933

III. DISCUSSION OF AUTHORITY..........................................933

A. Summary Judgment Standard ........................................933

B. Fair Housing Act ...................................................933

1. Whether §§ 3604 and 3617 of the FHA Require a Showing that Defendants’ Conduct Made Housing Unavailable or Resulted in the Denial of Housing...........................................934

a. § 3604 ......................................................938

b. § 3617 ......................................................939

2. WFether Hidden Village has presented sufficient evidence to sus-

tain/establish a § 3617 claim.....................................940

a. Factors One and Two of the § 3617 Test ........................941

b. Factor Three of the § 3617 Test: McDonnell Douglas

Analysis ..................................................941

i. Prima Facie Case......................................941

a. Racial Impact ...............................................942

b. Sequence of Events...........................................943

c. Administrative History........................................945

d. Individual Defendants.........................................947

ii. Legitimate Non-Diseriminatory Reason & Pretext..........948

c. Factor Four of the § 3617 Test ................................953

C. 42 U.S.C. §§ 1981 and 1982 ........................................., .954

1. Whether Hidden Village has Standing to Sustain §§ 1981 and 1982

claims .......................................................:955

2. Whether Hidden Village has Established §§ 1981 and 1982 Prim a

Facie Case ...................................................956

D. 42 U.S.C. § 1983 ....................................................956

1. Fourth Amendment Violation .....................................957

a. Whether Hidden Village has Standing to Sustain a Fourth Amendment § 1983 Claim...................................957

2. Fourteenth Amendment Violation.................■.................958

a. Whether Hidden Village has Failed to Plead a Fourteenth Amendment § 1983 claim ...................................958

b. Whether Hidden Village has Standing to Assert a Fourteenth Amendment § 1983 claim ...................................958

c. Whether Hidden Village has Failed to Establish a Fourteenth Amendment § 1983 Prima Facie Case........................959

d. Whether Hidden Village’s § 1983 Monell Claim Fails as a Matter of Law.............................................959

E. Qualified Immunity..................................................961

F. Trespass ...........................................................962

G. State Law Immunity.................................................964

1. Lakewood and Individual Defendants Named in their Official Capacities ....................................................964

2. Defendants Named in their Individual Capacity......................965

IV. CONCLUSION .........................................................965

I. INTRODUCTION

Before the Court is the Motion for Summary Judgment of Defendants City of Lakewood (“Lakewood”), Thomas J. George (“George”), Charles E. Barrett (“Barrett”), and Edward Fitzgerald (“Fitzgerald”) (collectively “Defendants”). ECF No. 49. Plaintiff Hidden Village, LLC (“Hidden Village”) has responded to the instant motion (ECF No. 52); Defendants have replied (ECF No. 59). Oral argument was heard April 4, 2011. For the reasons articulated below, Defendants’ Motion is denied.

II. BACKGROUND

A. Parties

1. Plaintiff and its Tenant — Youth Re-Entry Program

Plaintiff Hidden Village, LLC (“Hidden Village”) is the owner and manager of Hidden Village Apartments, located on the Eastern border of Lakewood, Ohio. ECF No. 1 at 4, 7. The company’s current members, Gary Lieberman and Michael Priore, own several apartment complexes within Lakewood, and acquired the property of Hidden Village Apartments in 2001. ECF No. 52-1 at 2, 4, 17.

The Hidden Village Apartment complex consists of ninety-seven apartment units in four separate apartment buildings, designated as A, B, C and D. ECF Nos. 1 at 7 and 52-1 at 6. Beginning in April of 2006, the apartments within Buildings C and D were occupied by the Lutheran Metropolitan Ministries’ Youth Re-Entry Program, which is not a party to this lawsuit. ECF Nos. 52 at 12.

The Youth Re-Entry Program (“YRP”) is an independent living program for at-risk youth, operated by the Lutheran Metropolitan Ministries (“LMM”), a religious based non-profit organization in northeast Ohio. ECF No. 52-3 at 2-3. By providing supervised and cluster-site living as well as instruction on topics such as anger management, banking, and apartment rentals, the Program seeks to prepare young adults for independent living. ECF No. 52-4 at 2 and 5. At all relevant times, the youth served by YRP ranged in age from 16-21 years old, and were referred to the Program as they were released from the custody of either the foster care system, operated by the Department of Child and Family Services, or the juvenile corrections system of the Ohio Department of Youth Services. ECF No. 52-4 at 2-3. On average, 80% of the YRP clientele was African American. ECF No. 52-4 at 4-

2. Defendants

Lakewood is a municipal corporation organized under the laws of the State of Ohio and, at all relevant times, was the employer of the individually named Defendants. ECF No. 1 at 4■ George is the former Mayor and Chief Executive Officer of Lakewood. ECF No. 1 at 4■ Fitzgerald was the former Administrator for Lakewood’s Division of Housing and Building Department. ECF No. 49-4 at 2. He was responsible for budgeting and all of the administrative paperwork for the Department. ECF No. 49-4 at 2. Additionally, Hidden Village indicates that Fitzgerald is also the Supervisor for Charles Barrett, the former Lakewood Building Commissioner. ECF No. 52 at 11.

As Building Commissioner, Barrett was responsible for enforcing and interpreting the meaning and application of the zoning code. He was also required to provide notifications, revocation notices, stop orders, or citations when a violation of the zoning code occurred. ECF No. 49 at 10.

B. Facts

The circumstances giving rise to this instant lawsuit began in 2006, when YRP sought to relocate from a drug-infested community in Cleveland to a more desirable location. ECF No. 52-3 at 4■ After a case manager noticed an advertisement for Hidden Village in the newspaper (ECF No. 52-4 at 6), Kandi Withers, the Director of YRP, and Mark Brauer, the Director of Youth Services for LMM, met with representatives from Hidden Village to discuss becoming tenants of the apartment complex, and, soon thereafter, YRP signed a lease to rent YRP Buildings C and D in the complex. ECF No. 52 at 10, 7.

Prior to YRP’s move-in date, Brauer contacted an acquaintance in Lakewood’s Health and Family Services Department to schedule a meeting with various city officials for the purpose of developing a good working relationship with Lakewood. Specifically, Brauer wanted to establish a positive relationship with Lakewood’s Police Department. ECF No. 52-3 at 13-14• His request was submitted to Lakewood’s Health and Family Services Director, Dot-tie Buckon, who requested information about the YRP. Brauer provided the requested information, and Buckon arranged the meeting. ECF Nos. 52 at 11 and 52-3 at 7-8.

On February 14, 2006, the meeting was held at Lakewood City Hall. ECF No. 49-15 at 7-8. In attendance were YRP officials, Priore of Hidden Village, Defendant Barrett and other government officials-including individuals from Lakewood’s Law, Building, and Police Departments, and the County’s Department of Children and Family Services. ECF No. 49-15 at 7-8.

In the meeting, Brauer provided the attendees with an overview of the YRP and identified the reasons that the City of Lakewood was chosen as the Program’s new home. ECF No. 52-3 at 10. Immediately following Brauer’s presentation, however, Barrett indicated that the tenancy of YRP was incompatible to Lakewood’s zoning ordinance. Barrett read the applicable permitted use for the Hidden Village apartment complex from the Lakewood Zoning Code, (ECF No. 52-3 at 10) which states:

In the M.H. District no building or premises shall be used or established which is designed, arranged, or intended for other than a medium density multiple-family residential building, a low density multiple family residential building, a single, or two-family dwelling, adult family home, adult group home, or cluster house development.

ECF No. 52-13.

Based upon his interpretation of the foregoing zoning code, Barrett opined that YRP’s tenancy constituted an institutional use — prohibited by the code — rather than a residential use — expressly authorized under the code. Other government officials contributed to the discussion by suggesting alternative locations to which Hidden Village could relocate. ECF Nos. 52-3 at 11 and 52-6 at 10. Although the parties maintained a civil demeanor, Brauer testified that the overall tone expressed by the City representatives was that YRP should not move to Lakewood. ECF No. 52-3 at 12.

Nevertheless, after the meeting, Brauer told Mary Louise Madigan, a member of Lakewood’s City Council, that YRP’s relocation plans had not wavered and that legal counsel for YRP found Barrett’s position “untenable.” ECF No. 52-10. Accordingly, in April of 2006, YRP moved into Hidden Village Apartments. ECF No. 52-3 at 15.

On April 18, 2006, Defendants Barrett, Fitzgerald, and Sergeant Edward Favre of the Lakewood Police Department, went to Hidden Village Apartments, after having been informed of YRP’s relocation. ECF No. 52-12. The City officials spoke to Wanda Jacobs, the office manager for YRP. Through that visit, the City officials identified the specific buildings occupied by YRP and the manner in which the units were utilized. Jacobs asked the officials if they had a search warrant and, when they answered negatively, she refused to further respond to their questions. Jacobs also explained that she believed the attorneys for the City and the YRP had resolved the zoning issues. ECF No. 52-12.

Barrett’s Zoning Determination: On May 18, 2006, Barrett issued a letter to Prior of Hidden Village. The document noted Barrett’s disappointment with YRP’s occupancy of Hidden Village Apartments and indicated that Priore had until June 17, 2006 to remove the “unpermitted use.” ECF No. 52-13.

Hidden Village, however, appealed Barrett’s zoning determination to the Lakewood Planning Commission. ECF No. 1 at 12. After a hearing was held, the Lakewood Planning Commission unanimously overruled Barrett’s zoning determination. The Commission found YRP’s occupancy to be a residential use of Hidden Village Apartments, and thus permissible under the zoning code. ECF Nos. 1 at 13;52-14 at 1;49 at 13.

Lakewood Police Department Correspondence: On October 11, 2006, Lieutenant Ciresi of the Lakewood Police Department issued the following departmental correspondence:

Attached is a phone contact list for the Youth Re-entry program (YRE) located at 11849 Clifton. There are 27 clients in the program that reside in buildings C and D ... If you have someone who lives in C or D, they are YRE clients as they have 100% occupancy of those buildings. Any contacts with YRE clients need to be documented. At minimum, have their names entered in into the CAD person file. The only way we can document that we are having problems with YRE residents is to record their information. FI’s, citations, MIN, person file-all of these can be useful for documentation. Citations and arrests are the preferred course of action for any violations encountered on or off site, in the vicinity of 11849 Clifton ... DISPATCH: ON ANY DETAILS INVOLVING 11849 CLIFTON PLEASE ATTEMPT TO DETERMINE THE APT. BUILDING (A, B, C, D) AND APT. NUMBER AND PUT THIS INTO THE CAD ENTRY.

ECF No. 52-17.

One day later, Captain Hassing of Lakewood Police Department issued a similar correspondence to the Shift Commanders within the Department instructing them to complete a report for those criminal acts or disturbances occurring at Hidden Village and those occurring off-site when the acts involved YRP participants. He further stated that “[i]f there are any witnessed violations citation are to be issued o[r] arrests made if appropriate.” ECF Nos. 52-16 and 52-3 at 17.

Hidden Village states that YRP staff began to receive complaints concerning police harassment of its participants. ECF No. 52-7 at 23. Withers and Jacobs testified that only the African American clients reported these problems. ECF Nos. 52-i at 22 and 52-3 at 17. Additionally, a memorandum signed by Withers delivered the following message to the Program’s participants:

WARNING YRP RESIDENTS!!!!! LAKEWOOD POLICE WILL BE ARRESTING ANYONE WALKING ON ANY RAILROAD TRACK IN THE CITY OF LAKEWOOD.

IF YOU USUALLY USE THE TRACKS TO GET TO YOUR DESTINATION, YOU MUST USE A SAFER, ALTERNATIVE ROUTE.

LAKEWOOD POLICE HAVE ALSO MADE IT VERY CLEAR THAT THEY ARE GOING TO BE WATCHING OUR PROGRAM AT ANY TIME. PLEASE MAKE SURE THAT YOU ALWAYS PRESENT YOURSELF IN AN APPROPRIATE MANNER TO AVOID ANY UNECESSARY (sic) HARASSMENT!!!

ALSO, IF YOU ARE APPROACHED BY POLICE, BE BE (sic) COOPERATIVE.

IF YOU HAVE ANY QUESTIONS, PLEASE SEE YOUR CASE MANAGER

THANK YOU FOR YOUR COOPERATION.

MRS. WITHERS

ECF No. 52-17.

In the beginning of October 2006, Councilperson Madigan requested a meeting to discuss Hidden Village and the YRP. ECF No. 52-19. According to Withers’ notes, Brauer, Madigan, Sergeant Favre, Lakewood police, and two neighborhood citizens all attended the meeting, wherein one of the neighbors indicated that he “thought he had seen a YRP teen making a drug deal” and the police “said that YRP was responsible for a crime wave.” ECF No. 52-20 at 5.

Mayor George’s Removal Letter: On February 28, 2007, then Mayor George sent a letter to the President of LMM, wherein the Mayor expressed concern that YRP moved into Hidden Village, despite Barrett’s initial determination that YRP occupancy did not conform to the permitted use. And after indicating that police intervention had more than doubled within the vicinity of Hidden Village since YRP’s relocation to the area, then Mayor George issued a “FAIR WARNING”: he would personally seek to have the Program removed from Lakewood at the earliest possible time. ECF No. 52-24-

On May 16, 2007, City officials and YRP representatives met to discuss the relationship between the police and the YRP. In his former capacity, George testified that the meeting involved “a general discussion about the situation and some venting” (ECF No. 49-17 at 4), as YRP representatives provided clarification that most of the criminal activity came from persons outside of the Program and the city officials expressed their concern that the surrounding area “was [an] unsafe neighborhood anyway for a program.” ECF No. 49-17 at 5. However, Withers testified to the accuracy of her notes/log entry chronicling the meeting which not only describe the meeting as heated, but also indicate that there was clear opposition to YRP from representatives of the Lakewood Police Department who, during the meeting, asked if YRP would vacate from Hidden Village Apartments. ECF Nos. 52-4 at 25-27 and 52-20 at 6.

Lakewood Inspections: On May 22, 2007, six days after the aforementioned meeting, various “Lakewood officials,” including Sergeant Edward Favre, and Gilman Scott, Lakewood Fire Inspector, descended upon Hidden Village unannounced. ECF Nos. 52 at 10; 52-5 at 4-5; and 52-9 at 5-6. Plaintiffs version and Defendants’ version of the facts concerning this event differ significantly.

Defendants have characterized the event as a joint inspection — a collaborative effort on behalf of Lakewood’s fire, police, and health departments — to inspect Hidden Village Apartments for the dual purpose of (1) verifying that all health and safety issues were properly addressed, and (2) determining the complex’s appropriate fire code classification. ECF Nos. 59 at 9; 59-5 at 2-4; 59-6 at 2-4-

According to Sergeant Favre, the inspection of Hidden Village was the result of an impromptu decision. He testified that the team of city officials had already been assembled to conduct a joint inspection of a neighboring property in Lakewood, [that was] suspected of drug and criminal activity. He stated that upon the conclusion of that inspection, the group had an on-the-spot discussion concerning Hidden Village and collectively decided to redirect their efforts to conducting an inspection of the compound. ECF No. 52-5 at 4-5. During his deposition, he could not clearly recall if inspecting Hidden Village had been his idea.

Relying upon Withers’ testimony concerning the event, Defendants contend that once they entered into the complex, none of the YRP enrollees objected to the inspection of the apartments. ECF Nos. 59 at 24; 49 at 15; and 52-4 at 17.

Needless to say, Hidden Village paints a remarkably different picture of what occurred on May 22, 2007. Hidden Village states that the encounter with City officials on that date amounted to a raid. ECF No. 52 at 17-18. In support of this contention, Plaintiff highlights Withers’ testimony, wherein she noted that amongst the city officials, there was at least one police officer clothed in SWAT attire, and also a police canine unit. ECF No. 52-4 at 62-63. And, although she could not recall whether the residents objected to the officials entering their units (ECF No. 52-4 at 17), she testified that she remembered the residents being very intimidated and very afraid. ECF No. 52-4 at 16, 20.

As to whether management objected to the inspections, Hidden Village highlights that Withers objected to the “raid[.]” ECF Nos. 52-4 at 17-18. . The Complaint further states that “upon learning of the raid in progress, counsel for [Hidden Village] demanded that all City officials leave and obtain a search warrant.” ECF No. 1 at 18. Withers also noted that within Hidden Village Apartments, she believed that the team only inspected Buildings C and D-Buildings occupied exclusively by YRP residents. ECF No. 52-4 at 21.

The Complaint states that as a consequence of the raid, on May 23, 2007, the City of Lakewood was put on formal notice that future warrantless searches and other intimidating behavior would not be tolerated. ECF No. lot 18.

On May 29, 2007, Scott Gilman, Fire Inspector of Lakewood, returned to Hidden Village Apartments to conduct a subsequent inspection. ECF No. 52-9 at 10. He testified that he did so because he needed to seek clarification of the building’s use classification. ECF No. 52-9 at 12-13. After contacting a Fire Marshal from the State for assistance, Gilman and the State Fire Marshal entered onto Hidden Village’s property, a short time later. ECF No. 52-9 at 12-13; ECF No. 59 at Fn. 4- According to Marilyn Watts, manager of Hidden Village Apartments, she repeatedly asked the officials to leave, but they refused. ECF No. 49-18 at 4-6. Lieberman 'testified that he told Watts “to tell them that they are not allowed [onto Hidden Village] without a warrant.” ECF No. 52-1 at 13. Watts indicated that the fire officials eventually left the property, after Gilman told her that he would return once he acquired a warrant. ECF No. 49-18 at 6.

Hidden Village states that on June 1, 2007, it wrote to Defendants concerning the pattern and practice of coercion and intimidation based on racial discrimination. ECF No. 1 at 19.

In July of 2007, owners of Hidden Village were allegedly cited for failing to maintain a hedge at a three foot height, even though, according to Plaintiff, the hedge had been maintained at a four foot height for over a decade. ECF No. 1 at 20.

C. Procedural History

On April 23, 2010, Hidden Village filed a complaint against the Defendants seeking monetary relief as well as declaratory, injunctive, and other equitable relief. ECF No. 1. The Complaint contains the following federal and state claims against each Defendant:

• Fair Housing Act, 42 U.S.C. § 3601, et seq.;

• Civil Rights Act of 1866, 42 U.S.C. § 1982;

• Civil Rights Act of 1870, 42 U.S.C. § 1981;

• Civil Rights Act of 1871, 42 U.S.C. § 1983;

• State law claim of trespass.

ECF No. 1.

In response to the instant lawsuit, on December 10, 2010, Defendants moved for summary judgment on all claims. ECF No. 49. Their arguments for dismissal are discussed in detail below.

III. DISCUSSION OF AUTHORITY

A. Summary Judgment Standard

Summary judgment is proper if “there is no genuine issue as to any material fact [and] the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). But “summary judgment will not lie if the ... evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In considering a motion for summary judgment, a court must construe the evidence in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The movant therefore has the burden of establishing that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Barnhart v. Pickrel, Schaeffer & Ebeling Co., 12 F.3d 1382, 1388-89 (6th Cir.1993). The central inquiry is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505.

B. Fair Housing Act

The Fair Housing Act (FHA) was established by Congress to insure that people who have historically suffered from discrimination in the housing markets would have an equal opportunity to housing. See People Helpers Inc. v. Richmond, 789 F.Supp. 725, 731 (E.D.Va.1992).

In the Complaint, Hidden Village generally alleges that Defendants’ actions constitute violations of the FHA, 42 U.S.C. §§ 3601, et seq., and § 3617 in particular, which provides:

It shall be 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 section[s] [3603, 3604, 3605 or 3606].

Jfi U.S.C. § 3617.

The other provisions of the FHA relevant to Hidden Village claims are §§ 3604(a) and (b) which makes it unlawful:

(a) 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;

(b) To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin.

1p2 U.S.C. §§ 8601f(a) and (b).

1. Whether §§ 3604 and 3617 of the FHA Require a Showing that Defendants’ Conduct Made Housing Unavailable or Resulted in the Denial of Housing.

Defendants first contend that they are entitled to summary judgment as to all of the FHA claims because Hidden Village has failed to present claims that are covered under the Act. They contend that the scope of the FHA with respect to §§ 3604 and 3617 only provide legal protection against acts that have made housing unavailable or resulted in the denial of housing to a protected class member. ECF Nos. Jp9 at 18-21 and 59 at 16-21. Given that the record reflects that Hidden Village has neither alleged nor produced evidence that Defendants’ actions made housing unavailable or resulted in the exclusion of housing for a YRP participant or any other protected class member, Defendants aver that Plaintiffs FHA claims are unsustainable. ECF Nos. A9 at 18-21 and 59 at 16-21.

In support of Defendants’ position that the instant allegations are not actionable under the Act, Defendants rely principally upon the holding and analysis of AHF Cmty. Dev. LLC v. City of Dallas, 633 F.Supp.2d 287 (N.D.Tex.2009)—a nonbinding case with an analogous fact pattern.

In AHF, the property owner of a large apartment complex filed a complaint against the municipality based upon its allegation that the City had harassed and intimidated its predominantly African American and Hispanic tenants. Id. at 289-91. The owner averred that as a means to expel the minority residents from the community, the City conducted a “raid” — a series of property inspections— upon its complex, cited the owner for code violations, and threatened to file a nuisance abatement lawsuit. Id. at 291-92. Believing the City’s actions to be motivated by discriminatory animus, the owner argued that the City’s conduct violated §§ 3604(a), 3604(b) and 3617 of the FHA. Id. at 289, 292.

The Court, however, disagreed and ruled that the City was entitled to summary judgment on all of the FHA claims. Id. at 297. Relying upon decisions from the Fifth and Seventh Circuit Courts of Appeal, the Court concluded that the objective of the FHA was to prohibit discriminatory conduct that directly implicated the availability or acquisition of housing, rather than its habitability or the enjoyment gained therefrom. Id. at 298-99, 302 (citing to Halprin v. Prairie Single Family Homes of Dearborn Park Ass’n, 388 F.3d 327, 329-30 (7th Cir.2004) and Cox v. City of Dallas, 430 F.3d 734, 740-41 (5th Cir.2005)). Accordingly, in the absence of evidence indicating that the City’s actions resulted in the denial of housing or otherwise made housing unavailable to the owner’s tenants, the Court held that the owner’s claims of harassment and intimidation were insufficient to sustain a viable FHA claim. Id. at 299-305.

Specifically, the § 3604(a) claim was rejected by the AHF Court because it did not implicate availability as the record did not reflect that the tenants were constructively evicted. Id. at 300-01. The § 3604(b) claim was also dismissed on similar grounds, in spite of the Court’s determination that its scope was different from § 3604(a)’s. Although the Court held that § 3604(b) only pertained to conduct connected to the sale or rental of housing, the Court indicated that this statutory provision, nevertheless, shared a similar focus with § 3604(a). Id. at 301-02. Accordingly, the Court found this provision to be inapplicable-noting that the alleged discriminatory conduct failed to implicate availability concerns as under the previous subsection. Id. The Court stated, “in order for [plaintiff to have a viable claim], the reach of § 3604(b) would have to be enlarged to cover conduct that makes a rented dwelling less habitable and enjoyable, even if not unavailable.” Id. at 302.

As for the § 3617 claim, the AHF Court summarily dismissed this allegation as well. After concluding that in Cox v. City of Dallas, 430 F.3d 734, the Fifth Circuit determined that the FHA is only concerned with discrimination in the acquisition of housing, the AHF Court examined the statutory text of § 3617 and indicated that it, too, supported this restrictive interpretation. See AHF, 633 F.Supp.2d at 302. The Court suggested that because the statutory language of § 3617 refers to the rights “granted or protected” by § 3604 or one of the other enumerated sections, § 3617 could not provide a standalone basis for liability; which thereby implied that a viable claim under § 3617 necessitated a violation under one of the referenced provisions. Id. (citing to Halprin, 388 F.3d 327 at 330). Thus, in light of the Court’s determination that §§ 3604(a) and (b) were limited to acts implicating availability and were, therefore, not applicable — the Court held that § 3617 also contained this restriction, and ruled that this claim must also fail. Id. at 303 (citing to two unpublished Fifth Circuit cases, including Reule v. Sherwood Valley I Council of Co-owners Inc., 235 Fed.Appx. 227 (5th Cir.2007)).

Although the AHF court framed its discussion concerning the viability of the owner’s FHA claims in terms of whether the claims “implicated] availability or acquisition,” a review of the case law relied upon by the AHF Court reveals that the Court’s inquiry was simply a rendition of a highly contested method for assessing the viability of FHA claims — determining FHA coverage based upon whether the alleged discrimination occurred at the time of or after the acquisition of housing.

This method was largely influenced by the Seventh Circuit Court of Appeals decision in Halprin v. Prairie Single Family Homes of Dearborn Park Ass’n, 388 F.3d 327 (7th Cir.2004), — a case that is not only cited by the AHF Court, but is also repeatedly used by Defendants to bolster their position.

In Halprin, a Jewish plaintiff and his spouse alleged that their homeowner’s association and several of its members violated §§ 3604 and 3617 of the FHA by engaging in a campaign of religious harassment against them. See Halprin, 388 F.3d at 329. After indicating that the FHA contains no hint of a concern with any issue but access to housing, the Seventh Circuit held that the current homeowners’ allegations were not actionable under §§ 3604(a) and (b) because the plaintiffs were not complaining about being prevented from acquiring property. Id. at 328-30. The Court noted, however, that as “a purely semantic matter the statutory language might be stretched far enough to reach a case of ‘constructive eviction.’ ” Id. at 329.

With respect to § 3617, the Halprin Court strongly suggested that absent an underlying violation of § 3604, the homeowners’ § 3617 claim must also fail. Id. at 330. But, the Court begrudgingly allowed this claim to proceed due to the existence of a U.S. Department of Housing and Urban Development (HUD) regulation permitting post-acquisition harassment claims, and because the defendants’ failed to challenge the regulation, in light of the Court’s inference that said regulation was invalid. See Halprin, 388 F.3d at 330.

Soon after Halprin was decided, the Fifth Circuit issued Cox v. City of Dallas, 430 F.3d 734 (5th Cir.2005) — which similarly restricted the scope of the FHA concerning post-acquisition claims. In Cox, homeowners in a predominately black neighborhood alleged that the City’s failure to prevent illegal dumping near the-residents’ homes violated §§ 3604(a) and (b) of the FHA. Id. at 736, 740-745.

Although the Fifth Circuit acknowledged that the City’s misconduct may have diminished the habitability of the plaintiffs’ homes, the Court found such allegations insufficient to support a claim under either statutory provision and therefore affirmed the district court’s dismissal of the FHA claims. Id. at 740-47.

As in AHF, the Cox court concluded that plaintiffs failed to state a claim under § 3604(a) because the city’s conduct did “not make dwellings ‘unavailable’ within the meaning of the act.” Id. at 740. And § 3604(b) was likewise inapplicable because the complained of conduct “was not ‘connected’ to the sale or rental of the dwelling.” Id. at 745.

Moreover, the Court’s conclusion that § 3604 could “encompass the claim of a current owner or renter for attempted and unsuccessful discrimination relating to the initial sale or rental or for actual or constructive eviction” insinuated that while § 3604 covered a wide range of pre-acquisition conduct, the protection afforded to post-acquisition claims was limited. See Id. at 746. Such claims are not cognizable unless the discrimination becomes so egregious that it amounts to actual or constructive eviction — i.e., has the effect of making housing unavailable or has resulted in the denial of housing.

While, in Cox, the Fifth Circuit did not address the applicability of § 3617 to post-acquisition claims, the Court subsequently expressed its opinion on the matter in an unpublished decision — Reule v. Sherwood Valley I Council of Co-owners Inc., 235 Fed.Appx. 227. Citing to both Halprin and Cox, the Court held that the plaintiffs “claims under §§ 3604 and 3617 of the FHA [must] fail because they go to the habitability of her condominium and not the availability of housing.” Id. at 227-28.

Although other Circuits have weighed in on the post versus pre-acquisition debate by providing opinions as to whether the FHA reaches post-acquisition claims and whether a viable § 3617 depends on the validity of one of the other enumerated provisions, the Sixth Circuit has been largely silent in this discussion. ECF Nos. 33 at 22-23 and 59 at 20-21. Nevertheless, Defendants cite to the Sixth Circuit’s decision in Maki v. Laakko, 88 F.3d 361 (6th Cir.1996), in support of the proposition that this Circuit has at least implicitly endorsed the conclusion of AHF — that a post-acquisition claim of harassment is not actionable under the FHA absent actual or constructive eviction.

In Maki former Iraqi tenants of a housing property alleged that they were harassed by their former landlords and subsequently evicted. Id. at 362-63. Alleging ethnic and familial status discrimination, the tenants sought relief under 42 U.S.C. § 3601, et seq. See Maki v. Laakko, 1994 WL 903893, 1994 U.S. Dist. Lexis 14097 (E.D.Mich.1994).

On appeal, the Sixth Circuit affirmed the lower court’s dismissal of the all-inclusive FHA claim. Maki, 88 F.3d at 362, 364. As a preface to the Court’s ruling, the Sixth Circuit analyzed whether the claim was sustainable by employing the foregoing prima facie test established in Selden Apartments v. United States Dep’t of Housing & Urban Dev., 785 F.2d 152 (6th Cir.1986):

A plaintiff must show the following:

(1) that plaintiff is a member of a protected class;

(2) that plaintiff applied for and was qualified to rent or purchase certain property or housing;

(3) that plaintiff was rejected;

(4) that the housing or rental property remained available thereafter.

Maki, 88 F.3d at 364 (citing Selden, 785 F.2d at 159). The Court then concluded that “summary judgment was appropriate because the record indicate[d] that the [tenants] were never denied housing that they desired, and thus [could not] meet the second element outlined in Selden.” Id.

Defendants concede that Maki fails to provide “extensive analysis of the direct relationship between §§ 3604 and 3617.” ECF No. 59 at 20. Nevertheless, in light of the fact that the Sixth Circuit “held that all of a plaintiff tenants’ fair housing claims fail because plaintiff tenants were not denied housing and housing was not made unavailable,” Defendants argue that this Court must make an analogous finding and impose the requirement of proof of actual or constructive eviction to the instant FHA claims. ECF No. 59 at 20.

Halprin and its progeny, no doubt, give some credence to Defendants’ general averment that Hidden Village has failed to present a viable FHA claim. Specifically, these cases support two distinct propositions-to which Defendants aver: (a) § 3604 fails to provide relief to Hidden Village because there lacks evidence of an actual or constructive eviction; and, (b) the § 3617 claim likewise fails as its applicability is tied to the viability of the § 3604 claim.

Given that the Sixth Circuit has not ruled explicitly, the Court rejects Defendants’ aforementioned reasoning and finds Defendant’s general averment untenable for the following reasons.

a. § 3604

As a preliminary matter, the Court notes that there is a divergence of opinion concerning the scope of § 3604 and whether it provides an avenue of relief for the claims presented in the instant litigation. Although subsection (a) has been held to only cover conduct that has the effect of making housing unavailable, there is at least some/considerable some case law against taking a similarly restrictive interpretation of the scope of subsection (b).

The cases relied upon by Defendants— Cox, Halprin, and AHF — no doubt support a finding that § 3604(b) is inapplicable given the post-acquisition nature of Hidden Village’s allegations and the fact that the alleged discriminatory conduct was not connected to a rental or sale transaction. But, the reasoning in cases such as United States v. Koch, 352 F.Supp.2d 970 (D.Neb.2004) and Comm. Concerning Cmty. Improvement v. City of Modesto, 583 F.3d 690 (9th Cir.2009), which the Court finds more persuasive, suggests otherwise. For instance, both Koch and Modesto support extending § 3604(b) coverage to post-acquisition harassment claims. In rejecting Halprin’s pre-acquisition restriction of the scope of § 3604, the Koch court stated, “it is difficult to imagine a privilege that flows more naturally from the purchase or rental of a dwelling than the 'privilege of residing therein; therefore the Fair Housing Act should be (and has been) read to permit the enjoyment of this privilege without discriminatory harassment.” 352 F.Supp.2d at 976; but see Cox, 430 F.3d at 745 (finding the statutory reading tying “privileges of sale” to include the privileges of continued occupancy and quiet enjoyment unconvincing).

In Modesto, the Ninth Circuit, similarly, rejected a narrow interpretation of the FHA, and opined that “limiting the FHA to claims brought at the point of acquisition would limit the [A]et from reaching a whole host of situations that, while perhaps not amounting to constructive eviction, would constitute discrimination in the enjoyment of residence in a dwelling.” 583 F.3d at 714.

Additionally, the Modesto Court rejected the argument that “the provision of services or facilities in connection therewith” language of § 3604(b) “refers only to services or facilities provided at the moment of acquisition in connection with the sale or the rental,” stating: “this is hardly a necessary reading. There are few ‘services or facilities’ provided at the moment of sale, but there are many ‘services or facilities’ provided to the dwelling associated with the occupancy of the dwelling.” Id. at 713; but see Cox, 430 F.3d at 745 (rejecting plaintiffs’ § 3604(b) argument that the City discriminated against them in the provision of a service because the service was not connected to the sale or rental of a dwelling and, similarly, rejecting the argument that the privileges clause of subsection (b) provided an avenue of relief because the alleged privileges were not connected to sale or rental of dwelling).

The instant Court finds the reading of § 3604 rendered by the Ninth Circuit preferable to the more restrictive reading of the Fifth and Seventh Circuits. Hidden Village’s opposing brief fails, however, to raise these varying interpretations or to even respond to Defendants’ general averment regarding the inapplicability of § 3604. Rather, Hidden Village rests its opposition solely upon the viability of a § 3617 claim under the statute.

As it must, the Court construes Hidden Village’s silence as a concession to Defendants’ argument, and will, therefore, not decide whether § 3604 fails to provide an avenue of relief. The approach is reasonable for two reasons: (1) § 3617 is the only express provision of the FHA that Hidden Village relies upon and (2) as discussed below, the viability of Hidden Village’s § 3617 claim does not depend upon the viability of a § 3604 claim. Thus, an unprovoked detailed examination of the applicability of § 3604 to the instant litigation and whether a cognizable claim requires a showing that housing was made unavailable or denied would be a waste of limited judicial resources.

b. § 3617

Having found that Hidden Village has not produced evidence indicating housing was denied or made unavailable to a protected class, it is clear that a § 3604 claim is foreclosed. The Court is, therefore, left to decide whether Hidden Village’s failure to press a § 3604 claim dooms its § 3617 claim. Defendants argue that it does. They contend that a § 3617 claim is conditioned upon a violation under § 3604. ECF No. 59 at 17-20. The Court disagrees.

First, contrary to Defendants’ assertion, there is not a binding Sixth Circuit case regarding this precise issue. In Michigan Protection & Advocacy Serv. v. Babin, 18 F.3d 337, 346 (6th Cir.1994), the Sixth Circuit noted that there is “some disagreement as to the requirement of a nexus between a § 3617 claim and a § 3604 claim[,]” but expressly declined to decide whether the plaintiffs’ § 3617 claim depended upon the validity of their § 3604 claim.

And, the Sixth Circuit’s later opinion, Maki, neither expressly nor implicitly endorsed a dependent construction of § 3617. Instead, the Maki court’s conclusion that plaintiffs were unable to establish a prima facie FHA claim, due to the absence of evidence present in the record indicating that they were denied housing, was limited to the particular facts of that case.

The Sixth Circuit has recognized that the specific proof required to establish a prima facie case of housing discrimination varies with the factual circumstances of a case, and that a plaintiff can successfully meet their prima facie burden if there is sufficient evidence leading one to conclude that plaintiff suffered an adverse housing action under circumstances giving rise to an inference of unlawful discrimination. See Lindsay v. Yates, 578 F.3d 407, 416 (6th Cir.2009). Conversely, a plaintiff fails to establish a prima facie case if unable to present aforementioned evidence.

Thus, in Maki, the Court held that the plaintiffs failed to establish their prima facie case not because evidence indicating whether housing was made unavailable or denied was required to sustain a claim under the FHA, but because the lack of such evidence precluded a reasonable juror from finding merit in plaintiffs’ allegations of being forcibly removed from their home as a result of Defendants’ actions. See Maki, 88 F.3d at 364-65.

In the instant case, because Hidden Village’s FHA claims are rooted in allegations of harassment — not eviction, the absence of evidence indicating protected class members were evicted would have no logical bearing upon whether Hidden Village has presented sufficient evidence to support its harassment-based FHA claims. Accordingly, Maki is inapposite and does not support dismissing Hidden Village’s § 3617 claim.

Additionally, Defendants’ principal case — ;AHF—fails to provide the Court with persuasive authority concerning whether a § 3617 claim could provide a stand-alone basis for liability. The AHF Court held that “ § 3617 applies only to conduct that implicates the availability of housing rather than merely habitability.” See AHF, 633 F.Supp.2d at 303. This opinion was derived primarily from Seventh Circuit’s opinion in Halprin, which implied that an independent violation of § 3617 could not exist. However, Halprin’s opinion on this matter has since been overruled by Bloch v. Frischholz, 587 F.3d 771 (7th Cir.2009).

In Bloch, the Seventh Circuit revisited the issue of whether a § 3617 claim could survive absent “a violation of § 3604 or any other FHA provision.” Id. at 781. The Court noted that although it had held, in some instances, that §§ 3604 and 3617 were co-extensive, the present case suggested a different construction. Id. The Court stated that, in light of its view that § 3604 prohibits discriminatory evictions, it follows that attempted discriminatory evictions would violate § 3617’s prohibition against interference with § 3604 rights. Id. at 782.

The Bloch Court provided several reasons for construing § 3617 in this manner. In analyzing the statutory text of the FHA, the Court noted that an alternative conclusion — rejecting the independence of a § 3617 violation — would make § 3617 entirely duplicative of the other FHA provisions. Id. Moreover, the Court stated that interpreting § 3617 to cover a more expansive range of conduct was consistent with both (1) congressional intent in enacting the FHA and (2) HUD’s regulations, which also interpret § 3617 to cover post-acquisition discrimination that does not result in eviction. Id. at 783.

The Court finds this reasoning persuasive. Moreover, Bloch’s conclusion that a § 3617 claim may remain viable, in the absence of a § 3604 violation, is consistent with at least two decisions within this Circuit. See Laufman v. Oakley Bldg. & Loan Co., 408 F.Supp. 489, 497 (S.D.Ohio 1976) (rejecting defendants’ contention that “§ 3617 is ‘triggered only after a finding of discrimination under one of the therein enumerated prior sections’ ” because their interpretation of the act violates the rule of statutory construction holding that “whenever possible, each provision of a legislative enactment is to be interpreted as meaningful and not as surplusage”); see also Byrd v. Brandeburg, 922 F.Supp. 60 (N.D.Ohio 1996) (finding a violation of § 3617 without examining whether plaintiffs housing was made unavailable or denied).

Consequently, this Court, like the Bloch Court, rejects the averment of Defendants. Hidden Village’s failure to produce evidence that housing was unavailable or denied does not doom its § 3617 claim.

2. Whether Hidden Village has presented sufficient evidence to sustain/establish a § 3617 claim.

Having determined that Hidden Village’s failure to allege or produce evidence that housing was made unavailable or denied does not preclude it from pursuing a § 3617 claim, the next inquiry for the Court is whether the evidence that Hidden Village has presented is sufficient to sustain the claim. The Court answers this question by analyzing the evidence pursuant to the foregoing test:

In order to prevail on a § 3617 claim, the plaintiff must show that (1) its tenants are a protected class under the FHA; (2) plaintiff aided or encouraged the tenants of the protected class in the exercise or enjoyment of their fair housing rights; (3) defendants were motivated in part by an intent to discriminate; and (4) defendants coerced, threatened, intimidated, or interfered with plaintiff on account of plaintiff having aided or encouraged the tenants in the exercise or enjoyment of their fair housing rights. See People Helpers, 789 F.Supp. at 732; East-Miller v. Lake County Highway Dep’t, 421 F.3d 558, 563 (7th Cir.2005).

a. Factors One and Two of the § 3617 Test

A mere cursory review of the facts reveals that Hidden Village has met the first and second elements of the test: Hidden Village provided housing for YRP — an organization — servicing primarily African American youth. See People Helpers, 789 F.Supp. at 732 (finding that plaintiff satisfied the first two factors of the test because plaintiff “clearly aided handicapped and black individuals in securing access to housing” and “[bjoth blacks and handicapped persons are protected classes under the Fair Housing Act”).

However, determining whether Plaintiff has met the third and fourth elements commands the Court to engage in a more detailed and sensitive inquiry as both elements require proof of discriminatory intent. See Id.; see also Mich. Prot. & Advocacy Serv., Inc. v. Babin, 18 F.3d 337, 347 (6th Cir.1994) (denying § 3617 claim partially because the record lacked any indication of discriminatory animus).

b. Factor Three of the § 3617 Test: McDonnell Douglas Analysis

In the absence of direct evidence, establishing that Defendants acted with discriminatory intent — the third factor of the § 3617 test — can be accomplished indirectly through the inferential burden shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under that framework, plaintiff has the burden of presenting sufficient evidence to make out a prima facie case of discrimination. Id. at 802, 93 S.Ct. 1817. If the plaintiff succeeds, the burden shifts to the defendant to present evidence of a legitimate, non-discriminatory reason for the challenged actions. Id. at 802, 93 S.Ct. 1817; Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The plaintiff may then show that the reason offered by the defendant is merely a “pretext” for unlawful discrimination. McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817.

i. Prima Facie Case

With respect to the first burden, allocated to the plaintiff, the “Supreme Court has emphasized that the prima facie standard offered in McDonnell Douglas was not ‘inflexible’ and that the specific proof required of the plaintiff in that particular case was ‘not necessarily applicable in every respect in differing factual situations.’ ” Lindsay, 578 F.3d at 416 (Sixth Circuit citing Texas Dep’t of Comm. Affairs v. Burdine, 450 U.S. 248, 254 n. 6, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)).

Thus, in overruling a denial of a motion for summary judgment on a § 3604 federal housing discrimination allegation the Sixth Circuit, among others, ruled that, “[a] prima facie case is established whenever the actions taken by the [defendant] lead one to reasonably ‘infer, if such actions remain unexplained, that it is more likely than not that such actions were based on discriminatory criterion’ such as race.” See Lindsay, 578 F.3d at 418 (citing Furnco Const. Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978) ).

The Sixth Circuit explained that “the additional evidence” which can be relied upon to establish a prima facie claim depends on the attendant facts and circumstances. Id. A summary of Hidden Village’s allegations against all of the Defendants is as follows:

Defendants were and continue to engage in a pattern and practice of official governmental conduct which includes, but is not limited to, (a) urging and coercing a “voluntary” mass exodus of African-American tenants from Hidden Village by Defendant George in his official and personal capacity (b) executing mass raids of units rented by African-American citizens (c) threatening the owners and program officials (d) insisting zoning noncompliance despite a unanimous finding of the planning commission from which the Defendant took no appeal (e) using police power to intimidate individual residents without cause, and (f) attempting to intimidate the owners of Hidden Village by conducting building inspections and citing violations which are unfounded.

ECF No. 1 at. 22. Thus, because the factual basis of Hidden Village’s § 3617 claim revolves around municipal action resulting from alleged discriminatory decision-making, the Court will determine whether Hidden Village has established its prima facie case by analyzing the evidence pursuant to the following checklist of considerations for establishing that governmental action was motivated by discriminatory intent espoused by the Supreme Court in Arlington Heights v. Metro. Hous. Dev. Corp, 429 U.S. 252, 266-268, 97 S.Ct. 555, 50 L.Ed.2d 450 (U.S.1977): (1) the racial impact of the decisions, (2) the specific sequence of events leading up to the challenged decisions — including departures from the normal procedural sequence; and (3) the administrative history of the decisions. See Id.; see also Reg’l Econ. Cmty. Action Program v. City of Middletown, 294 F.3d 35, 49-51 (2nd Cir.2002) (stating that a prima facie case of discrimination under the FHA and ADA is established by presenting evidence that “animus against the protected group was a significant factor in the position taken by the municipal decision-makers themselves or by those to whom the decisionmakers were knowingly responsive” and also determining whether the •plaintiff met this burden by analyzing the Arlington Heights factors); see also Turner v. City of Englewood, 195 Fed.Appx. 346, 353 (6th Cir.2006) (adopting Reg’l Econ. Cmty. court’s prima facie standard under the ADA and likewise determining whether the plaintiff met this burden by analyzing the Arlington Heights factors).

a. Racial Impact

The Supreme Court states that the “important starting point for assessing discriminatory intent under Arlington Heights is the impact of the official action whether it bears more heavily on one race than another.” Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 489, 117 S.Ct. 1491, 137 L.Ed.2d 730 (U.S.1997) (internal quotations and citations omitted). Following the Supreme Court’s instruction, this Court finds that in the instant case, there is a permissible inference that at least some of the municipal action, highlighted by Hidden Village, had a disproportionate impact on African Americans.

Lakewood Police Department Correspondence: For instance, Lakewood Police Department correspondence, issued on behalf of police management, instructing officers to document any contact with YRP members and to preferably arrest or issue citations when witnessing violations by the Program’s participants (ECF Nos. 52-16 and 52-17) seemingly support Hidden Village’s allegation that its African American tenants were disproportionately subjected to police harassment, in light of the fact that YRP’s clientele was 80% African American (ECF No. 52-1 at k). This holds true, even if similar correspondence was issued for other Lakewood properties, based upon Withers’ and Jacobs’ testimony — indicating that only the African American YRP residents reported problems with police harassment. ECF Nos. 52-1 at 22 and 52-8 at 17. Moreover, claims by YRP staff that the Program’s clients were issued tickets by Lakewood police for jaywalking, walking on train tracks, and failing to have a license on a bike provide further evidence that the aforementioned policy documented in the correspondence was, in fact, implemented and had a discriminatory effect. ECF Nos. 52 at 15;52-7 at 2; and 52-3 at 16.

Lakewood Inspections: Additionally, the May 22, 2007, joint inspection by Lakewood officials likewise points to municipal action that disproportionately impacted African Americans. According to Withers’ testimony, the team of city officials only inspected Buildings C and D of the compound — which were buildings occupied exclusively by the predominately African American YRP residents. ECF Nos. 52 at 12 and 52-1 at 21.

Additionally, even conduct that, when considered independently, seemingly failed to cause a disproportional impact — such as Defendant Barrett’s zoning determination (ECF No. 52-18) and former Mayor George’s letter (ECF No. 52-21), both of which ordered the removal of YRP from Hidden Village Apartments — collectively, had a disproportional impact on African Americans who comprised 80% of YRP’s participants. When considered together, these support Hidden Village’s averment that the Defendants’ organized a campaign of harassment against a predominately African American group.

b. Sequence of Events

The second factor — specific sequence of events leading up to the official action — including departures from the normal procedural sequence — creates an inference of discriminatory intent. Barrett’s Zoning Determination: Barrett testified that he went to the February 14, 2006 meeting, involving city officials and representatives of Hidden Village and YRP/ LMM with the intent to advise YRP that their proposed use violated the City of Lakewood zoning code. ECF No. 52-6 at 9. His admission is problematic, to say the least, given the fact that the February meeting constituted the first assembly of the various parties. According to Barrett, his opinion concerning zoning non-compliance was based upon material describing the YRP that he had reviewed prior to the meeting. ECF No. 52-6 at 7. This revelation does not diminish the significance of Barrett’s testimony. The meeting provided an opportunity for Barrett and other City officials to supplement their knowledge, resolve doubts, and gain more detailed information regarding the Program. Thus, the appearance of Barrett’s willingness to disregard the opportunity to become better informed about YRP lends credence to Hidden Village’s claim that his zoning determination was motivated by discriminatory intent. See Valley Hous. LP v. City of Derby, 802 F.Supp.2d 359, 386-87 (D.Conn.2011) (stating that a defendant’s “drafting of the decision to deny plaintiffs’ appeal before the meeting without discussion with the other ZBA members and without showing them a draft prior to reading it into the record ... support a conclusion of discriminatory decision-making” and indicating that a Zoning Board’s reliance upon an interpretation of the zoning regulations without having probed the research supported a finding of discrimination).

Lakewood Inspections: Moreover, the inspections by Lakewood officials raise additional red flags. Hidden Village highlights that the joint inspection occurred a mere six days after the City and YRP held a meeting that was characterized as “heated” by a YRP representative and, during the meeting, YRP was asked to move. ECF No. 52-1, at 25-27. The unannounced nature of the visits also underscored a deviation from the City’s typical procedure. Lieberman testified that as a property owner in Lakewood since 1986, he had always been notified in advance for any City inspections. ECF Nos. 52 at 19 and 52-1 at 11.

Additionally, Scott Gilman, the City’s Fire Inspector, testified that a joint inspection of property like Hidden Village is typically conducted when there is a change to the fire protection, new occupancy permit is required, or when they receive a complaint from residents. When asked to pinpoint the trigger causing the joint inspection of Hidden Village, Gilman had no firm answer. He admitted that he would not determine whether YRP was in compliance with fire or safety codes because the “building department” was not sure of the use of the building. He acknowledged not knowing why the police were present.

While so much of what occurred during the initial inspection appears suspiciously out of the ordinary, what is most striking about Gilman’s testimony is his stated purpose for participating in the joint inspection and subsequent inspections. Gilman testified that he was attempting to determine the complex’s appropriate use classification — whether Hidden Village should be classified as a residential or institutional use — in order to identify the required level of fire protection for the building. However, despite this stated purpose for the inspection, Gilman repeatedly conceded that the department responsible for determining such usage is the Building Department. ECF No. 52-9 at 6, 12-13. Barrett, former Building Commissioner, further testified that he had previously informed Gilman that Hidden Village held a residential use classification. ECF No. 52-6 at 16. Thus, Gilman’s actions likely reflect that the “raids” constituted not only a procedural deviation from the City’s custom, but also a substantive departure as well. See Arlington Heights, 429 U.S. at 267, 97 S.Ct. 555 (“Substantive departures too may be relevant, particularly if the factors usually considered important by the decisionmaker strongly favor a decision contrary to the one reached.”).

Lakewood Police Department Correspondence: Sergeant Favre testified that the police department generally permits officers to exercise a degree of discretion when issuing citations and making arrests. ECF Nos. 52 at 11 and 52-5 at 8. Thus, the issuance of correspondence suggesting that officers abandon that discretion when encountering YRP tenants also denotes a sub