Gateway Justice Complaint

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DWIGHT C. HOLTON, OSB #09054United States AttorneyDistrict ofOregonADRIAN L. BROWN, OSB #[email protected] United States AttorneyUnited States Attorney's OfficeDistrict ofOregon1000 SW Third Avenue, Suite 600Portland, Oregon 97204-2902Telephone: (503) 727-1003Facsimile: (503)727-1117

Attorneys for Plaintiff

FllB30SEP'lli0'49USK4RP

UN ITED STATES DISTR ICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

UNITED STATES OF AMERICA,Plaintiff

Civil NoC\P*il 1191 PKv.

MONTAGNE DEVELOPMENT, INC.,MULTI /TECH ENGINEERINGSERVICES, INC.,DAVID A. MONTAGNE, WILLIAM D.JONES, DAVII INVESTMENTGROUP, LLC, AND GATEWAY IILLC,

Defendants; andGATEWAY I LLC,

Rule 19 Defendan t.

COMPLAINT

Case 3:11-cv-01191-PK Document 1 Filed 09/30/11 Page 1 of 10 Page ID#: 1


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The United States ofAmerica1. This action is brought by the United States to enforce the Fair HousingAct, Title

Vin of the Civil Rights Act of 1968,42 U.S.C. 3601-3619.

Jurisdiction and Venue

2. This Court hasjurisdictionover this action under 28 U.S.C. 1331 and 1345and 42 U.S.C. 3612(o) and 3614(a).

3. Venue is properin this jurisdiction, pursuant to 28U.S.C. 1391(b) and 42U.S.C. 3612(o), because the claims alleged inthis action arose in Salem, Oregon intheDistrictofOregon, andconcern or otherwise relate to realproperty located therein.

The Property4. TheGateway Village Apartments are locatedat 1900Madras Avenue SE,in

Salem, Oregon. The property consists of seven (7)multi-level townhouses; and29multi-story,non-elevator, multifamily buildings that contain between four (4) and 12dwelling unitsperbuilding totaling 275 units. 112 of the units are located onthe ground-floor.

5. Therentalunitsat the Gateway VillageApartments are "dwellings"within themeaning of 42 U.S.C. 3602(b).

6. TheGateway Village Apartments weredesigned andconstructed for firstoccupancy after March 13,1991. Itsground-floor units are "covered multifamily dwellings"within themeaning of42U.S.C. 3604(f)(7)(B). Thecomplex is subject to the accessibilityrequirementsof42 U.S.C. 3604(f)(3)(C).

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The Defendants

7. DefendantMulti/TechEngineeringServices, Inc.,was the architect and civilengineerfor theGateway VillageApartments and property.

8. DefendantMontagneDevelopment, Inc., was the contractorresponsible for theconstruction ofGateway Village Apartments.

9. Defendants David A. Montagne and WilliamDavid Jones were GeneralPartners in the "Dav II InvestmentGroup", anOregonGeneral Partnership.

10. Defendant Dav II Investment Group was the initial developer of the property,owning the land from thepre-development stage until theproperty was divided into twoparcels and sold inOctober, 2003. Dav II Investment Group was initially a generalpartnership and later became a Limited Liability Corporation (LLC).

11. Defendant Gateway II,LLC, hasbeentheowner ofrecordfor"PhaseII" of theproperty since October, 2003, including during construction.

12. Rule 19DefendantGatewayI, LLC, has been the owner of record for "PhaseI"oftheproperty since approximately October 16,2003. Although Gateway I, LLC was notinvolved inthedesign andconstruction of Phase I, it controls access to theproperty and isanecessary party to thisaction under Fed. R.Civ. P. 19(a)(1)(A).

Fair Housing Claims13. Plaintiff re-alleges andherein incorporates by reference the allegations set forth in

paragraphs 1-12, above.




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14. Defendants' engaged in discriminatory housing practices in designing andconstructing theGateway Village Apartments (hereinafter "Gateway"). Defendants failed todesign and construct Gateway in such amanner that: (a) there are accessible building entrancesonan accessible route; (b)thepublic useandcommon useportions ofthe dwellings are readilyaccessible toandusable bypersons with disabilities; (c)all doors are sufficiently wide to allowpassage by handicapped persons inwheelchairs; (d) all premises within such ground-floordwellings contain the following features ofadaptive design: (i) anaccessible route into andthrough the dwelling; (ii) light switches, electrical outlets, thermostats, and other environmentalcontrols in accessible locations; and (iii) useable kitchens andbathrooms, such thatan individualusing awheelchair canmaneuver aboutthe space.

COUNT I

15. Plaintiff re-alleges and incorporates by reference herein the allegations set forthabove.

16. Complainant Fair Housing Council ofOregon (FHCO) isa private nonprofitcorporation whose mission is to ensure compliance with fair housing laws for all persons inOregon and southwestWashington. Their principal place ofbusiness is located in Portland,Oregon.

17. OnDecember 27,2005, a testerfromtheFairHousing Council ofOregon(FHCO) visited the complex toconduct an accessibility survey ofGateway. The tester observedbarriers to accessibility inboth the interior ofa ground-floor apartment, aswell as the exterior

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public areas ofGateway. FHCO then conducted further investigation to identify thedeveloper,builder, andarchitect of Gateway, andobtained copiesof building permitsandcertificates ofoccupancy for some ofthebuildings. FHCO has continued to expend resources on this mattersince filing thecomplaint, including participating inthe inspection of theproperty byHUD'sexpert consultant.

18. FHCO fileda timelycomplaint withHUDon July26,2006 pursuant to 42U.S.C.3610 (a), alleging that Defendants had discriminated against persons with disabilities by failingtodesign and construct a building that meets the accessability guidelines required by the FairHousing Amendments Act.

19. Subsequent to the filing of the complaint with HUD, and in response to theviolations it hadobserved atGateway, FHCO conducted at least three additional design andconstruction workshops for developers and other persons who design and build multifamilyhousing.

20. Pursuant to therequirements of42U.S.C. 3610(a) and(b), theSecretary ofHousing and Urban Development ("the Secretary") conducted an investigation oftheabove-mentioned complaint regarding Gateway, attempted conciliation with theDefendantswithout success, and prepared final investigatoryreports.

21. Basedon the information gathered in this investigation, the Secretary, pursuantto42U.S.C. 3610(g)(1), determined that reasonable cause exists to believe that illegaldiscriminatory housing practices occurred atGateway. Accordingly, onor about August 23,2011, theSecretary issued aDetermination ofReasonable Cause andCharge ofDiscrimination,charging Defendants with engaging indiscriminatory housing practices inviolation of the FHA.Page 5 ComplaintUnited States etal, v. Montagne Development, Inc., et al.



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22. On or about August 26,2011, complainant FHCO elected to have the claimsasserted inHUD"sChargeofDiscrimination resolvedin a federal civil action, pursuantto 42U.S.C. 3612(a).

23. The Secretary subsequently authorizedthe AttorneyGeneralto commencethisaction, pursuant to 42 U.S.C. 3612(0).

24. Defendants, throughthe actionsand conduct referredto in paragraph 14,have:a. Discriminated in the sale or rental or otherwise made unavailable ordenied dwellings to buyers or renters because of handicap, in violation of42 U.S.C. 3604(f)(1);b. Discriminated againstpersonsin the terms,conditionsor privileges of thesaleor rentalof a dwelling, or in the provision of services or facilities inconnection with a dwelling, becauseof handicap, in violationof42U.S.C. 3604(f)(2); andc. Failedto design and construct dwellings incompliance with theaccessibility and adaptability features mandated by42U.S.C. 3604(f)(3)(C).

25. TheFHCO is an aggrieved person within themeaning of the FairHousing Act, 42U.S.C. 3602(i), and has suffered damages asa result ofDefendants' conduct described above.Defendants' conducthas frustrated andmaterially impairedFHCO's mission of promoting andensuring compliance with fair housing laws inthe state ofOregon andinSouthwest Washington.As a result ofDefendants' conduct, FHCO has diverted resources from other activities toidentify andcounteract theeffect ofDefendants' unlawful actions and itwillbe required tocontinueto do so until this matter is resolved and Gateway is brought into full compliancewithPage 6 ComplaintUnitedStateset al, v. Montagne Development, Inc., et al.



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the Fair Housing Act.26. The discriminatory actions ofDefendants were intentional, willful,and taken in

disregard for the rights of others.COUNT II

27. Plaintiffre-alleges andincorporates by reference hereinthe allegations describedin paragraph 14, above.

28 . The conduct ofDefendants described above constitutes:a. A pattern or practice of resistance to the full enjoyment of rights grantedbythe FairHousingAct,42U.S.C. 3601-3619; orb. A denial to a groupofpersons of rights granted by the FairHousing Act,42U.S.C. 3601-3619, whichdenial raisesan issueof general publicimportance.

29. In addition to the FHCO, there may be other victims ofDefendants'discriminatory housing practices who are aggrieved persons as defined in42U.S.C. 3602(i)and may have suffered injuries and damages asa result ofDefendants' actions and practicesdescribed above.

30. Defendants' discriminatory actionsand practicesdescribedabovewereintentional,willful, and taken in disregard for the rights ofothers.

Praver for Relief

WHEREFORE, the United Statesprays that the Court enter an order that:1. Declares thatthe policies and practices ofDefendants, as allegedherein, violate

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the Fair Housing Act;2. Declares that Defendants have engaged in a pattern or practice ofdiscrimination

in violationof the FairHousingAct and have denied rights under the Fair Housing Act to agroupof personsraisingan issueofpublic importance;

3. Enjoins Defendants, theirofficers, employees, agents, successors, andall otherpersons in active concert or participation withanyof them, from

a. Discriminating in the rental, or otherwise making unavailable or denyingdwellings to renters, because of handicap in violation of42U.S.C. 3604(f)(1);b. Discriminating againstanypersonin the terms,conditions, orprivilegesof rental of a dwelling, or in theprovision of services or facilities in connectionwith such dwelling, because of handicap in violation of42U.S.C. 3604(f)(2);c. Failing or refusing to bring theground-floor dwelling units andpublic useand common useareasatGateway Village Apartments intocompliance with42U.S.C. 3604(f)(3)(c);d. Failing or refusing to takesuchaffirmative steps asmaybe necessary torestore, as nearly as practicable, persons harmed byDefendants' unlawfulpractices totheposition they would have been inbut for thediscriminatoryconduct;e. Failing or refusing to takesuchaffirmative stepsasmaybe necessary toprevent recurrence of any discriminatory conduct inthefuture, andto eliminate, tothe extent practicable, the effectsof theirunlawfulpractices;e. Designing and/or constructing anycovered multifamily dwellings in the

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future that do not contain the accessibility and adaptability features required by42 U.S.C. 3604(f)(3)(C);

4. If necessary,enjoins Rule 19DefendantGateway I, LLC from engaging in conductthat denies access to Gateway,or from failing to take any other action appropriate to ensure thatanyretrofits required to bring Gateway intocompliance withthe accessibility provisions of theFairHousing Act can bedonein a promptandefficientmanner; and

5. Awards appropriatemonetarydamages, pursuant to 42 U.S.C. 3612(o)(3),3613(c)(1), and3614(d)(1)(B), to eachperson harmed byDefendants' discriminatory conduct andpractices.

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TheUnitedStatesfurtherpraysfor suchadditional reliefas the interestsofjusticemay require.

Respectfully submitted this^,^yofSeptember, 2011.

DWIGHT C. HOLTONUnitedlStates AttorneyDisrfWofOregoiADRIAN LI BROWNAssistant United States AttorneyUnited States Attorney's Office1000 SW Third Avenue, Ste. 600Portland, OR 97204-2902

ERIC H. HOLDER, JR.Attorney General of the United States

Is / ThomasE. PerezTHOMAS E. PEREZAssistant Attorney GeneralCivil Rights Division/s/Steven H. RosenbaumSTEVEN H. ROSENBAUMChiefTIMOTHY J. MORANDeputy ChiefU.S. Department of JusticeCivil Rights DivisionHousing and Civil Enforcement Section950 Pennsylvania Ave, N.W.Washington, D.C. 20530



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Gateway Justice Complaint