United States District Court, S.D. Ohio, Western Division, Dayton
DAYTON VETERANS RESIDENCES LIMITED PARTNERSHIP, d/b/a Freedom's Path at Dayton, Plaintiff,
DAYTON METROPOLITAN HOUSING AUTHORITY, d/b/a Greater Dayton Premier Management, Defendant.
H. RICE DISTRICT JUDGE.
REPORT AND RECOMMENDATIONS 
L. OVINGTON UNITED STATES MAGISTRATE JUDGE.
Dayton Veterans Residences Limited Partnership, doing
business as Freedom's Path at Dayton (Plaintiff), is a
Florida limited partnership authorized to do business in
Ohio. It describes itself as, “A sole purpose entity
formed specifically for the purpose of developing and owning
the 60 units of affordable housing in Dayton that will serve
United States Veterans ….” (Doc. #6,
PageID #48, ¶5). Most of the veterans it seeks
to house in its development are “persons with
disabilities.” Id. at ¶13.
Metropolitan Housing Authority, doing business as Greater
Dayton Premier Management (GDPM), is a federal public housing
agency operating in Montgomery County, Ohio and the greater
Dayton, Ohio region. Its mission is, in part, to operate
public housing for low-income individuals, seniors, and
alleges that Defendant GDPM blocked Plaintiff's attempts
to obtain financing it needed to develop and own 60 units of
low-income housing for veterans in Dayton. Defendant GDPM did
so, according to the amended complaint, with discriminatory
intent and with discriminatory effect in violation of the
Fair Housing Act of 1968, as amended, 42 U.S.C. § 3601,
et seq., and the Americans with Disabilities Act of
1990, as amended, 42 U.S.C. §12101, et
case is presently before the Court upon Defendant GDPM's
Motion to Dismiss under 12(b)(1) and 12(b)(6) (Doc. #7),
Plaintiff's Response in Opposition (Doc. #9), Defendant
GDPM's Reply (Doc. #10), Plaintiff's Surreply (Doc.
#16), and the record as a whole. The issues the parties raise
broadly concern whether Plaintiff has standing to pursue,
whether its amended complaint states a plausible claim upon
which relief can be granted, and whether its claims are not
ripe for review.
understand the factual context from which Plaintiff's
claims emerge requires discussion of the federal housing
program known as Veterans Affairs Supportive Housing (VASH)
and its connection to this case. Plaintiff's amended
complaint informs the discussion. See Warth v.
Seldin, 422 U.S. 490, 501 (1975) (“ For purposes
of ruling on a motion to dismiss for want of standing, ...
the ... [C]ourt must accept as true all material allegations
of the complaint, and [it] must construe the complaint in
favor of the complaining party.”); see also DLX,
Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004).
“is a federal program that is allocated to public
housing authorities in two forms”: a tenant-based form
and a project-based form. (Doc. #6, PageID #49,
¶10). “The VASH program combines rental assistance
for homeless veterans with case management and clinical
services provided by the Department of Veterans
Affairs.” Id. at ¶17. Plaintiff's
goal is to use VASH project-based rental assistance to house
veterans, most of whom are disabled, in a development known
as Freedom Path-Dayton VA on the VA Medical Center's
campus in Dayton. Id. at ¶s 25, 28.
April 9, 2013, … under the leadership of Alphonzio
Prude, GDPM's Interim Chief Executive Officer, GDPM
extended its support for Plaintiff's new development on
the campus of the VA Medical Center and committed
thirty-three … project-based vouchers.”
Id. at ¶28. This support was extended through a
Program the amended complaint identifies as “Housing
Choice Awards.” Id. at ¶s 23, 28. The
amended complaint describes Housing Choice Awards as
“another kind of housing assistance ….”
Id. at ¶29.
alleges that Prude's/GDPM's affirmative commitment to
provide 33 project-based through Housing Choice Awards
supported Plaintiff's goal of provide housing assistance
to disabled and other veterans on the VA Medical Center's
campus in Dayton. (A copy of Prude's commitment letter is
attached to the amended complaint. Id. at ¶29
(and Exhibit A)). The connection between Housing Choice
Awards and VASH project-based vouchers is that HUD
administers the VASH program “in accordance with most
of the requirements that apply to Housing Choice Vouchers
….” Id. at ¶23. The import of
this emerges from Prude's letter in which he states that
GDPM's Housing Choice Voucher Program is extending their
support for the new development on the campus of the VA
Medical Center.” (Doc. #6, PageID #62).
Plaintiff understands this as GDPM's initial affirmative
commitment to support Plaintiff's efforts to obtain VASH
financing for its planned housing development. (Doc. #6,
PageID #53, ¶29).
leads to the heart of the amended complaint. Plaintiff
alleges that since Defendant GDPM's initial affirmative
commitment, GDPM “has balked at providing continued
support to Plaintiff.” Id. at ¶30.
Plaintiff needs Defendant GDPM's support “because
only [Public Housing Authorities] such as GDPM may apply for
a VASH allocation.” Id. at ¶27. In
December 2015, Plaintiff asked GDPM to apply for
project-specific, project-based VASH vouchers on
Plaintiff's behalf. The application deadline was in
September 2016. GDPM declined to do so.
“Notwithstanding its initial commitment of thirty-three
… project-based [Housing Choice Vouchers] ¶ 2013,
GDPM has balked at providing continued support to
Plaintiff.” Id. at ¶30. Plaintiff
Recently, under new leadership, and following meetings
between GDPM's Executive Director Jennifer N. Heapy,
Plaintiff's principals, and others, GDPM proposed
applying for VASH Project-Based Rental Assistance on behalf
By applying for VASH [assistance] … on its own behalf
rather than on behalf of Freedom's Path, as GDPM had
originally promised, and by not applying in a timely manner
for Plaintiff's specific, project-based VASH vouchers,
GDPM jeopardized HUD's award of 25 points that would give
Plaintiff enough points for its project to be selected, which
in turn would provide necessary treatment to veterans who
would otherwise go without adequate treatment and housing.
Id. at ¶s 31-32.
response to Plaintiff's inquiries, Defendant GDPM
provided “various inconsistent, mistaken, or shifting
rationales for its indecision….” Id. at
¶33. Plaintiff alleges, for example, GDPM explained, in
part, that Prude's letter was inconsistent with federal
law, and GDPM “has already exceeded its overall
allocation of vouchers (this in incorrect-a HUD VASH voucher
waiver to the cap is available)[.]” Id.
September 2, 2016, Plaintiff's counsel sent a detailed
letter to GDPM asking it to apply to HUD on Plaintiff's
behalf for 60 VASH vouchers. Id. at ¶34 and
Exhibit B, PageID #64. Plaintiff emphasized in its
letter that “[t]ime is of the essence” given the
September 9, 2016 deadline for applications to HUD for VASH
vouchers. Id. Plaintiff's letter also stated,
“Please treat this as a request for reasonable
accommodation under the Fair Housing Amendments Act of 1988
and the Americans with Disabilities Act, and take whatever
steps necessary to accommodate our request to apply to H.U.D.
for the sixty (60) HUD-VASH vouchers....” Id.
Plaintiff asserts in its amended complaint that GDPM denied
the requested accommodation. (Doc. #6, PageID #54,
claims that GDPM's discriminatory conduct violated the
FHA by effectively making “housing unavailable to
Plaintiff's prospective residents. [GDPM's] acts were
undertaken with the intent to discriminate against, and had
the effect of discriminating against, disabled veterans and
those who provide services to them, namely Plaintiff and its
prospective residents.” Id. at ¶64.
Plaintiff also claims that GDPM's stalling and denial of
a reasonable accommodation violated the ADA and “were
taken with the intent to discriminate against, and had the