In November of 2012, the Justice Department handed down a victory for one local community. One year later, the community’s search for justice and a place to call home continues.
Background of Case
The story of New Horizons began over a decade ago, when 20 mostly low-income immigrant families began to organize around the decrepit conditions of the Dogwood Mobile Home Park (DMHP) on Morris Mill Pond, located in central Sussex County, Delaware. In response to resident complaints, in March of 2003 the Delaware Department of Natural Resources and Environmental Control (DNREC) issued a citation for the presence of three illegal cesspools on the property. This was on top of a water supply that was so polluted with nitrate run-off that the residents could not use it for drinking or cooking. The owner of the DMHP – who had dug the cesspools before the arrival of the families – shortly after the citation, began issuing eviction notices to residents in retaliation for the complaints. In an attempt to turn the residents against each other, the landlord posted a copy of the environmental complaint with the name of the complainant along with the eviction notice.
Rather than turn on each other, however, the families banded together and challenged the eviction in successive state courts, until they had negotiated an additional year’s stay of eviction. At the same time, the families formed the Morris Mill Pond Cooperative and partnered with the Delaware Housing Coalition in an attempt to purchase the land from the owner and establish it as a cooperative.
The owner of the DMHP, however, refused any offer to purchase the property, and with the temporary stay of eviction set to expire, the families were forced to leave. The community remained in contact, however, and under the leadership of Rene Arauz, community activist and longtime resident of the DMHP, they continued to look for land in pursuit of the dream of collective homeownership for themselves and their families.
In 2005, a new opportunity arose with the formation of the Diamond State Community Land Trust (DSCLT) which, shortly after its founding, partnered with the former Morris Mill Pond Cooperative, now called New Horizons Cooperative. The partnership was a strong one. Not only did the Community Land Trust approach fit the needs of the New Horizons Community perfectly, but the specific goals of the two organizations were highly complementary.
DSCLT had formed to address the acute need for affordable housing in Sussex and Kent counties, which had seen a major influx of new, wealthier residents, many of them retirees from neighboring and nearby states. New Horizons provided a strong constituency with both an acute need for permanent, affordable housing and, even more importantly, the will to organize and fight for their community – the most critical element of any CLT.
In turn, DSCLT provided New Horizons with the critical development capacity needed to find a suitable location, aid in planning and design, deal with local zoning, building, and environmental codes, and assist with public outreach.
A two year search began for land on which to both reestablish the community and expand the amount of permanently affordable housing stock in Sussex County. After looking at two dozen potential sites, the group ultimately settled on a 42-acre site in Sussex County near the town of Laurel adjacent to Trap Pond State Park. Half of the site would be developed for housing, recreation and community-supported agriculture, the other half would remain as forest.
In 2008, DSCLT and New Horizons Cooperative submitted plans for the 50-unit cluster development, to be called New Horizons Community, to the Sussex County Planning & Zoning Commission. However in May of 2010, about two months before the scheduled review of the plans by the Commission, communications from Sussex County ceased. The night of the hearing arrived and no fewer than 75 individuals showed up to voice their opposition to New Horizons. The local attorney who had organized the opposition went so far as to compare the proposed New Horizons Community development to the Deep Water Horizon oil spill, notwithstanding the fact that it was poor environmental management that had forced the New Horizons community to seek a new location in the first place! On July 14, 2010, the Commission denied approval, with one Commissioner speaking out saying the neighborhood development proposal met Planning & Zoning requirements, and voting to approve.
The Case Goes to Court
DSCLT and New Horizons immediately appealed the decision to the Sussex County Council, who upheld the Commission’s decision, again with one Council member voting to approve and voicing his opinion that the New Horizons application met County code.
“After the appeal, we talked long and hard about whether we wanted to pursue legal action,” said former Executive Director of DSCLT Van Temple, “but ultimately we decided we wouldn’t be doing right by these families or by our mission as a CLT if we didn’t take this to court.” In November of 2010, DSCLT initiated legal action against the County. They had a strong case. Not only had DSCLT not asked for a single variance with the New Horizons proposal – which was in full compliance with local zoning – but the proposed development was in accordance with the 2008 Sussex County Comprehensive plan, which had even mentioned DSCLT by name as a partner for the expansion of “shared equity projects” in the county.¹
Two complaints were filed, one in Superior Court alleging violation of the due process clause on the part of the Planning & Zoning Commission and County Council, the second with the State Division of Human Relations and the regional HUD office, located in Philadelphia. This complaint alleged violation of the Fair Housing Act on the part of the Commission, whose decision had clearly been based on the national origin of the members of the New Horizons Cooperative.
In response to the lawsuit, Council representatives suggested a number of conditions be met by the plan in order for it to come under reconsideration by the Planning & Zoning Commission. Some of these conditions included provisions regarding job creation, landscaping, management, and a guarantee that all homes would be owner-occupied and that subletting would not be permitted. DSCLT gladly complied…by reminding the County that all of these conditions had already been met in the original plan.
In spite of such offers by DSCLT, however, the County refused to settle out of court. Ultimately, after a two year legal process, a Consent Decree was filed by the U.S. Department of Justice which ordered the County and Commission to reconsider the New Horizons plan based solely on the applicable zoning and land use laws and barring them from using injunctive measures to delay the development. The decision further ordered that the County and Commission:
“undertake an Affordable and Fair Marketing Plan to encourage the development of housing opportunities, including Affordable Housing and housing developed under the Moderately Priced Housing Unit Program and the Sussex County Rental Program, that are available and accessible to all residents of Sussex County regardless of race, color, or national origin.”²
Finally, the DOJ ordered that the County pay $750,000 to DSCLT in compensatory damages, and amount which, while nowhere near the direct expense and opportunity costs incurred by DSCLT over the course of four years, was at least symbolic of the County’s responsibility and wrongdoing.
The Decision: One Year Later
In December of 2012, Sussex County appointed a new Fair Housing Compliance Officer with a history of progressive housing policy work in the county. Brandy Nauman, who has retained the position with the County, had previously been instrumental in the development and implementation of the Moderately Priced Housing Unit (MPHU) program for both homeownership and rental affordable housing opportunities during her time at the Sussex County Community Development and Housing Office. Over the past year, Ms. Nauman has been working with the Delaware State Planning Commission and the DOJ on revising and updating Sussex County’s Affordable and Fair Housing Marketing Plan, which the County adapted from the DOJ. Today she continues her work in the implementation and enforcement of the county’s fair housing policy.
However, during the three years since the Commission and Council’s rejection of the initial plan, circumstances at the state level had changed. In fact, in 2010, no sooner had the Council rejected DSCLT’s appeal, the DNREC updated the state’s stormwater and wastewater regulations. The new regulations were far more stringent than those in place in 2008, and would have required the construction of an on-site wastewater facility in the proposed New Horizons development due its proximity to state parkland. At the time of the original application, underground septic tanks were acceptable in the area where the proposed New Horizons development would have been located. Such a new requirement would have made a 50-unit development on the site economically unfeasible, and the Trap Pond State Park location had to be abandoned.
The ten year struggle for New Horizons has also been a war of attrition, one which has seen the scattering of the community. Today, only four or five of the original families remain actively committed to the search for a new location. They continue to be led by Rene Arauz, who has maintained the relationship with Diamond State CLT. The coalition’s priorities, in the meantime, have shifted as well. The real estate market in Sussex County has cooled since the burst of the housing bubble in 2007, and DSCLT and the remaining families have begun searching for property within local towns in Sussex County. “The goal now is community integration, not seclusion,” says Amy Walls, Board President of Diamond State Community Land Trust. This new direction coincides with a renewed push by some housing policy experts for stronger and more effective inclusionary housing policies, and presents both new challenges and opportunities in the ongoing fight for affordable housing and community integration nationwide.
*This article benefited immensely from the contributions of several local housing experts and advocates, individuals who have been instrumental in the fight for housing justice in Sussex County, Delaware and beyond. The Author would like to thank them for their input and insights, without which this article would not have been possible:
Ken L. Smith, Director, Delaware Housing Coalition
Van Temple, Executive Director, Crescent City Community Land Trust
Amy Walls, Board President, Diamond State Community Land Trust
**All images courtesy of Amy Walls, DSCLT.
¹Quoted in Diamond State CLT, Inc. “New Horizons Subdivision: Suggested Conditions for Sussex Council Reconsideration of P&Z Approval.” Diamond State CLT, Inc., February 2, 2011, 1.
²United States of America v. Sussex County, Delaware, and Planning and Zoning Commission of Sussex County. Consent Decree (United States District Court for the State of Delaware, November 28, 2012, 9).
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