The Colorado Coalition for the Homeless and the General Services Administration are continuing a legal fight over a piece of land near the Denver Federal Center. The coalition filed a motion last week after federal district Judge William Martinez dismissed the first lawsuit without prejudice in November last year.
CCH vice president of communications and public policy Cathy Alderman said the organization hopes the court directs GSA to reevaluate its decision to auction land that the CCH hopes to use to build a homeless shelter. GSA confirmed that the auction for the land has resumed and is currently scheduled to close in July but declined further comment on litigation matters.
The court granted CCH a temporary restraining order, which stopped the public auction in July. In August, Martinez issued an order granting a stay dependent on a U.S. Department of Housing and Urban Development review to determine the suitability of the land. The court found that CCH showed “a likelihood of success in proving at least that HUD’s unsuitability determination was arbitrary and capricious and therefore in violation of the Administrative Procedures Act.”
The McKinney-Vento Homeless Assistance Act requires federal agencies to list properties for homeless shelter programs. Title V allows eligible organizations, such as states, local governments and nonprofit organizations, to use “unutilized, underutilized, excess or surplus federal properties” for homelessness assistance. Providers don’t pay rent on the properties. Leases can range from a year to up to 20.
Per Title V, GSA informed HUD that the land was excess, and as the first suit states “subject to HUD’s assessment of suitability.” A landfill at the northwest corner of the 59-acre parcel was previously a waste disposal site for construction projects. According to a GSA action plan, it contained things like asbestos-contaminated soil and laboratory waste among other hazardous materials.
In September 2016, HUD published a notice and deemed the property “unsuitable” for development and homeless facilities, noting that there was a “clear threat to personal safety.” But the GSA sent out an invitation for bids on the property and included a “corrective action plan” pertaining to the landfill. It disclosed that the that the Colorado Department of Public Health and Environment Hazardous Materials and Waste Management Division placed an environmental use restriction on the property.
After the temporary restraining order, HUD issued a notice of reconsideration about the suitability of the land. GSA cancelled the auction while waiting for a decision from the U.S. Department of Health and Human Services.
CCH submitted an application to HHS for the property in December. Title V stipulates that applicants include information on services offered, need, implementation time, experience and financial capacity. HHS requested additional information a week later, and informed CCH that its application was approved in January. In February, HHS requested further documentation pertaining to the organization’s ability to finance the project. According to the suit, CCH spent over $100,000 on consultations and services to complete the applications.
In March, HHS sent a letter stating that the application was “not approvable because it failed to meet threshold requirements related to the CCH’s ability to finance the development and operation of the approved program of use.” The auction for the land resumed on April 2.
The lawsuit also notes that the city of Lakewood received negative feedback from residents opposed to the prospect of CCH building homeless facilities on the property.
But Alderman said that in the 13 other ongoing Title V transfer cases, public input hasn’t been a factor, but feels it could have played a role here.
“If HHS was influenced by that input or is using a different standard to evaluate our plan versus other plans under the law,” she said. “We don’t think public input is inappropriate, it’s just not part of the process.”
Alderman hopes that a 2013 federal district court decision from D.C. will come into play in this case. In National Law Center on Homelessness and Poverty, et al. v. United States Department of Veterans Affairs, et al. the court found “troubling indications of widespread noncompliance” with regard to the Title V process. It ordered GSA and HUD to comply with Title V, concluding a 25-year battle between nonprofits and the government regarded unused federal properties.
“We think that’s very important. We’ve seen federal agencies not comply with the requirements of Title V over and over again, so much so that the court has directed them to comply and that order still stands,” she said. “We think it has implications for this case —the process seemed weird, the evaluation tactics and criteria seem unusual and we don’t think they’re following the letter of the law.”
She added that typically the process should primarily involve HHS, not GSA, and that GSA has involved themselves unnecessarily — something she hasn’t seen in other Title V land transfers. GSA declined to provide a response to that statement.
“Every day that we are having to litigate this and have this public fight over the land is another day that hundreds of individuals and families are sleeping under bridges, in cars and motels,” Alderman said. “We just really want to find a way to create a safe space for people to be in the short term, so we can get to a place where we can provide long term housing.”
— Kaley LaQuea