Citizens Committee for Faraday Wood v. John v. Lindsay, Mayor of the City of New York, 507 F.2d 1065

Citizens Committee for Faraday Wood v. John v. Lindsay, Mayor of the City of New York

507 F.2d 1065

2d Cir.

1975

Check Treatment

*2 LUMBARD, Before FEINBERG and OAKES, Judges. Circuit LUMBARD, Judge: Circuit judgment appeal Plaintiffs dat- 10, 1973, September of the ed Southern District, Ward, J., dismissing Robert J. complaint their after a trial without a D.C., jury.1 The plain- brought tiffs a class action on behalf of New who all York residents reside inadequate deteriorating housing and qualify and who would for residence public housing within low-income units. injunctive They sought declaratory and against City, mayor, relief city’s Development the Ad- (HDA) ministration and HDA’s adminis- grounds city’s trator that the de- proceed publicly cision not with a fi- housing project nanced for middle- and eight-acre plot low-income families on known as Wood in North Riverdale section of the Bronx violated clause of Four- in that it was teenth Amendment moti- vated had a racial considerations racially discriminatory effect. In addi- tion, plaintiffs, one of the named findings judge they district even Judge if was tried before the late case clearly are not erroneous since we can Judge evalu After McLean’s McLean. Edward C. ate the can, written record as assigned well as he see the case was in October 1972 death Higgins, Orvis v. 180 F.2d 537 parties stipulated Judge Ward. The denied, cert. Judge could decide the Ward L.Ed. 595 we find ourselves Judge in basic While in McLean. made before record agreement Judge findings. Ward’s power set aside we have such a case Planning Commission Housing, Income Middle Association Board of Estimate. project, sponsor (AMIH), Inc. termi- city’s decision to asserted Although there was considerable com- city’s project breached nate munity opposition to project, ap- relationship with AMIH. The tractual plication processed in the normal court found that district manner until August 1969. On August *3 to show that the defendants had failed 8, 1969,however, in the midst of mayo- engaged racial discrimi- purposefully ral primary election, the Hall Press in violation of the fourteenth nation Office press issued a release that stated city’s and that the action did amendment that John V. Lindsay, then seeking re- unconstitutionally discrimi- have an mayor election as of New York City, was the It dismissed natory effect. also opposed to project the because the site We affirm. claim. tract was allegedly unsuitable for high-rise construction and because the community City’s New York program scatter-site was concerned about overcrowding in its public selecting sites, for first schools.4 Soon after press the release designed announced pro- was issued the HDA stopped processing building mote the public housing in plans for the Faraday Wood site. An densely less populated the areas of the attempt was made to resurrect the city. Faraday Wood was one of the sites project in a modified form February program. selected under this The initial 1970. AMIH proceeded to adapt plans Faraday site for Wood included plans to this proposal, new but ultimate- units for low-income fami- ly differences between the HDA and lies and 150 units for moderate- AMIH led to the termination of the Far- However, families. income after aday Wood project in December 1970. hearings2 in the fall of 1967 Faraday designated development Wood for Judge Ward found that technical under the Mitchell-Lama Act3 as a hous- justifi- problems advanced development ing for middle-income fami- project’s termination cations lies with 20% the units reserved for substantial and that termi- city’s low-income families. At the be- political actually occurred as re- nation sponsor hest AMIH became the community opposition. He sponse project and developed preliminary plan however, concluded, no there was Faraday site, Wood which envi- discrimination on purposeful high-rise sioned one (twenty-story) build- community opposi- city because ing (six-story) several low-rise build- main, not, racially in the moti- tion was May ings. 14, 1968, On Plan- the termina- found that vated. He also ning Commission indicated that would an unconstitutional ra- not have tion did application consider a formal for a discriminatory effect because 80% cially project Mitchell-Lama on the Faraday were reserved the units 27th, site. May Wood On the HDA ad- families and thus the for middle-income vised AMIH that given it had termination was project’s brunt of project preliminary subject approval Unlike the borne those families. acceptable submission of building plans involved, families are where low-income availability of city funds. Final ap- that a dis- no to assume there is reason proval contingent number of the middle-in- proportionate upon approval of building plans by would be non- affected families Companies Law, Housing N.Y. one of Priv. Law art. Faraday Wood 2. The (McKinney’s Consol.Laws, 44B, At this c. discussed. projects that were several amended, (McKinney Supp. 1974). decisions no firm made point what, anything, with the to do if Mayor At trial Lindsay denied that he had site. Wood press authorized the release. popular name Act is Mitchell-Lama York Limited-Profit suspect on a impinges class order findings, making these After white. qualify for the stricter compelling state the rational basis applied Judge Ward interest standard. equal protection review and standard city’s action did not vio- found that While race long has recog been standard. late that suspect nized as a classification, low-in come status has not been so recognized.

I. San Antonio School District v. Rodri guez, Traditionally courts have used U.S. L.Ed.2d (1973). Thus, when faced review two standards must show that a certain state action was an impingement claims that a disproportionate equal protection clause.5 violates effect on nonwhites when the upheld if it Usually the state action cancelled the Faraday See, g., Lindsley e. has a rational basis. district court con Co., cluded that no v. Natural Carbonic Gas such effect was shown *4 337, (1911). agree. and we L.Ed. 369 How Eighty per 31 55 S.Ct. cent of the ever, infringes upon a if the state action reserved for middle-income persons.6 (voting, travel) Since right apartments fundamental or is at Fara day (race), Wood would suspect at a class directed rented for at least per justify per month, $80 room required to its action state is the annual family income compelling a state interest. showing limitation for a four-room apartment See, Shapiro Thompson, v. 394 would g., e. U.S. have been $23,000. over 1322, 618, (1969). 22 See N.Y. L.Ed.2d 600 Private Housing 89 S.Ct. Finance Law clearly 31 (McKinney § there is no constitutional Supp.1974). Since The exist quality a certain of ence of such right high access to of income limitation for Normet, 56, Lindsey majority v. 405 housing, project’s U.S. occupants 862, (1972), precludes 74, 31 L.Ed.2d 36 cf. a finding 92 S.Ct. project’s Williams, 471, Dandridge v. 397 90 cancellation U.S. had a disproportionate ef 1153, fect on plain Indeed, 25 L.Ed.2d 491 S.Ct. nonwhites. the whole city’s rationale must establish action for carefully tiffs scrutinizing gov- urge analy- In the alternative us to form of equal intermediate plaintiffs adopt LaFleur, Educ. v. Bd. of test —some an intermediate equal protection sis. Cf. Cleveland compelling L.Ed.2d 52 39 791, interest stand 632, where between the 94 414 U.S. Green, supra, approval). (citing with (1974) ard and the traditional rational basis stand “slightly, if we applied has seemed to even event, ard. The Court Supreme ap In any rigorous” ration- test of more See, such a test on several occasions. e. ply perceptibly, Green, supra, 633, F.2d at 473 g., 251, v. 404 U.S. 92 S.Ct. 30 Reed, 71, Reed ality we (1971); same, be the would v. 405 in this case Baird, L.Ed.2d 225 Eisenstadt result 1029, 92 S.Ct. 31 L.Ed.2d 349 out below. U.S. point (1972). generally The Gunther, See Supreme statutory advanced also have Plaintiffs In Search Term —Foreword: Court, 1971 42 Act, Fair claim based Evolving Changing on a A Doctrine Court: (1970). not do They 3601-3631 §§ U.S.C. 86 Harv. Protection, Model for Newer Equal here, except is involved Act how the specify (1972). L.Rev. 1 This circuit also espoused constitution- their if establish they to say Village g., E. Boraas v. of Belle such a test. their stat- established will have claim, they al (2d 1973); 806 Cir. Green v. Terre, 476 F.2d statu- view whatever they claim. Since utory (2d Educ., Bd. of 473 F.2d 629 Cir. Waterford their have as dependent they claim tory However, Court reversed Supreme it. discuss need not we claim, constitutional ra Boraas the case under analyzed F.2d 500 County, v. Nassau See Acevedo re tional basis standard equal protection (1974). at 1082 Village v. 416 Boraas, view. of Belle Terre 39 L.Ed.2d 797 94 S.Ct. 6. Since had no complaint light August and the In reversal actions Supreme city’s until refusal an intermediate Court’s under adopt consideration then —the 80%-20% in San Antonio School against standard review measure which proper —is Rodriguez, Dist. v. 411 U.S. 93 S.Ct. the effect of the termination should be meas- (decided (1973) 16 subsequent 36 L.Ed.2d ured. plan was never more 50%-50% Boraas), suggestion the Second decision than a Circuit tentative of how the site might now unclear whether the Court be used. See note 2 accepts supra.

1069 Lawton, (10th F.2d 1037 Cir. adversely ernmental actions that affect 1970); SASSO v. Union F.2d projects traditional is that (9th 1970); Cir. Joseph projects designed Skillken & these are for low-in- Toledo, v.Co. 380 F.Supp. 228 (N.D.Ohio, persons and courts are not blind 1974). See also United Farmworkers of racial dispro- fact that minorities are Housing Project, Fla. Inc. City represented of Del portionately in the lower-in- Beach, ray (5th 1974).8 Cir. society. come levels of our There is no disproportionate overrepresentation is clearly distinguishable This case minorities in middle-income levels.7 First, Lackawanna. in Lackawan- the assumption Hence used the typical above, na, and the other cases cited public housing case valid here. housing projects designed only were persons. In such low-income cases Plaintiffs’ reliance on our decision Kennedy possible say Assn., Park that nonwhites were Homes Inc. v. Lackawanna, disproportionately affected since (W.D.N. aff’d, persons Y.), low-income involved and disproportionate cert. denied. since number of non- persons. (1971) whites are low-income That is L.Ed.2d 546 is misplaced. Second, true in this that case case. we found pri- eases a to thwart a cited acted clearly Lackawanna was segregated— developer’s attempt to construct 98.9% its vate nonwhite citizens lived persons. one low-income of its three populations wards. The *5 involved other two cities had no financial other wards were .2% However, project. and .01% with the nonwhite. connection The nonwhite ward case, governmental body the that was the in this least desirable residential area city proceed project of to the the with because it decided contained a large plant. steel the one that initiated it and Moreover, it same ghetto was a in going of the that was to finance it. Instead physical traditional only one sense— asking the bridge merely city us to order to connected it to the rest of the city private develop- city’s and the remove barriers nonwhites were large ment, ly plaintiffs asking are us to enter a contained in that one limited area of city. “[ojrdering the Against judgment the defendants background this we plaintiffs held that the for an alternative city the secure not, could absent a upon de- in which the compelling interest, site9 Riverdale thwart of efforts private possible construction will make organization fendants housing build project for and housing for low-income low-income families in the white area of New York of sub- minority citizens of by, among things, other re dwelling fusing stantially number of the same accede to rezoning a reasonable request. 'been lost as a result of Other units .have courts have reached sim See, blockage ilar AMIH’s illegal results. of g., Brown, e. Crow v. project.” relief would clear- F.Supp. Wood (N.D.Ga.1971), aff’d, Such (5th 1972); inappropriate. ly Dailey City v. Authority, true, Chicago Housing course, g., 7. is v. It of Gautreaux that some nonwhites Perks, (7th Cir., 1974); qualify status, Banks v. 503 F.2d 930 middle-income (N.D. According These number Ohio small. to the 1970 cen- (based plain- inapposite figures) because sus cases are here and blacks Puerto City comprised only persons York Ricans tiffs never established New of 6.1% $25,000 practice $10,000 in incomes of discrimination between followed policies. general con- On the Popu- New lation, site-selection SMSA. 1970 Census city adopted trary Population, Characteristics there was evidence program in 1966. Table 192. a scatter-site also cite several cases where Plaintiffs by its original sold site since been has adopt cities to nondis- courts ordered government of the Union owner criminatory policies site-selection Republics. Socialist Soviet housing See, placement public projects. e. proof opposition was racist is not clearly the record Also, in Lackawanna any event, enough. In the decision to city’s actions established project terminate was made con racial improper motivated been officials did not establish Assn. Kennedy Park Homes siderations. they motivated racial F.2d Lackawanna, supra, siderations, and, fact, however, was evi- there Here, our 109, 113-114. those officials were not moti- dence that us convinces the record reading vated such considerations and did not conclud correct court was the district community opposition believe that the be was terminated project ing that project primarily in char- and that racial community opposition cause acter.11 the most not for opposition such was, There racially motivated. In Lackawanna we also stressed the record evidence example, background historical of the city’s policy considerable demonstrated of discrimination and noted how af- gene high-rise structures opposition city’s fected the Here, nonwhites. prove the attempts Plaintiffs’ ral.10 above, noted there is no showing that largely of racial motives were existence the city’s action had disproportionate ef- meetings descriptions based fect on nonwhites since project audience some members of the where designed mainly for per- middle-income How opposition project. to the spoke in Moreover, sons.12 was only spoke in ever, who were also those many one housing projects. The many of the favor money tentatively allocated to the Fara- opposition opposi advanced in reasons — day would be available for high-rise construction, fear ov tion another contrast, ertaxing community facilities—could when private developer prevented Plaintiffs, as .racist. characterized building public city, in a no brother, dissenting conclusively and our such provided whatever is to the we and dis racism where perceive city’s residents. that such trict court do not. We think an area’s Normet, in this case confuses perception Lindsey On the basis of *6 v. comparatively uncrowd protect to v. Thompson, desire and Palmer supra, keep to living with a desire conditions ed L.Ed.2d 438 simply true that out. It is not municipality minorities held that a could which housing community opposition to the swimming operate any choose to upon here rac proposal operate had to be based a de- pools than them on rather basis, “know” that plaintiffs rejected because a segregated recently ism. Just we high-rise 10. The existence However, structures conclude we cial discrimination. Riverdale does not a lack North indicate reading opinions of all in that case from a opposition bona fide on such structures that doubtful that the Court intended is many community’s citizens. In evidence from all exclude consideration clear fact, February report by consulting a a purposeful racial discrimination. employed by firm the New York Plan- ning Commission indicated that “[c]onstruc- Contrary 12. to the assertion of the dissent high-rise past during tion of units decade Faraday that designed by pinpointed community is lead- [Riverdale] persons, to aid clearly low-income and as evi- major objection develop- ers their to recent by high-income denced limit for course, opposition, only ments.” Such can renters, designed Mitchell-Lama Act was expressed public when the allowed to greatest single deficiency correct “[t]he participate planning process. Thus it the States urban centers [which the short- is] public agency, when a which is re- age housing of moderate income for families quired hearings projects, pro- to hold on its earnings whose exceed the traditional poses high-rise building a that a housing McKinney’s level.” Foreword opportunity express opposition has an Consolidated Laws of New Private buildings. to such Housing Law, (1962) (statement Finance vii Thompson, Mitchell, realize We that Chairman, Palmer v. su- MacNeil Legislative Joint suggests pra, generally courts should not Committee on Multiple Dwell- inquire ings). into motives in establish order to ra- housing and that a pri- concerned one make claim similar to marily with persons middle-income does County, here. In Acevedo Nassau suspect not deal with a class. Hence the (1974),we examined Acevedo’s F.2d 1078 city’s actions justified need not be plain- light the cases cited claim in a compelling governmental interest. and we said: tiffs in actions, Those in view of community op- however, Appellants argue, position not shown to be racially moti- began plan appellees low in- once vated, more than satisfy requirement they for Mitchell Field of rationality, even if that be viewed not, with the Four- could consistent with more than vigor. minimal Cf. note Amendment, plan teenth abandon supra. here, Thus as Acevedo, a do disproportion- if to so would is no constitutional violation. groups, impact minority unless ate “compelling show a appellees could Our today decision does not for that abandonment. represent state interest” a retreat from Lackawanna. In that case we held that a cannot take discriminatory action impedes which appellants All the eases on which private organizations’ efforts to build involve either the refusal of a rely housing for low-income families. governmental body grant Nor benefits can build such itself governmental to all or the equally ob- then operate it ain discriminatory man private projects beneficial struction ner. See Otero v. New Hous minority groups integration. or ing Authority, 484 appellants seek not to remove Here 1973). We hold today only that a governmental proposed obstacles to cannot compelled to build and impose finance appel- rather specific housing project designated, in duty lees affirmative to construct part, to aid low-income any families housing. clearly required or This is specified group of its citizens simply be any provision of the Constitution. cause it plan started to such a project. County, Acevedo v. Nassau supra, at As Douglas Justice said in Berman v. Parker, Plaintiffs seek to distinguish Acevedo 99 (1954): L.Ed. 27 “We do not sit to noting private there was no determine whether a particular housing sponsor involved in builder that case.13 project is or is not desirable.” irrelevant, especially This seems since it probably only indicates the Nassau II. plans County were more tentative than Plaintiff AMIH also asserts contract plans event, any here. the in- against claim city. In AMIH’s volvement of AMIH *7 words, “This claim is based the exist- project change does not the fact ence implied of an agreement that [the

that primarily city a city] process would application AMIH’s it, city The initiated was inti- funding good Mitehell-Lama mately planning, involved and was faith.” Although plaintiff concedes that going to it. finance governs claim, York law re- this it lies principally is on federal We no cases that hold conclude that that government the federal duty has a quality of right fundamental to a certain sites, equipped housing approve opinion mention made no not to in Acevedo choose Our plans, that and construction of failure to show Nassau sell bonds oversee Acevedo’s Moreover, projects. city required County segregated. if to at- we The dissent’s ground project, housing might distinguish build tempt this Acevedo on this considering projects deterred from future seems strained. fear that if it indicated even a tentative inter- Douglas’s state- Justice of soundness 14. The project, might est a federal later courts uncertainty over dissent’s in the is seen ment it, city’s despite force it build financial appropriate in this remedy would what programs. housing or its condition other are Courts were followed. its views case if 1072 the opinion whites. As such carries with honestly bids that it has so- consider abnegation previous its own See, Industries, it of g., licited. e. Keco Inc. and, States, precedents of this and other courts United respect, unrealistically all (1970); with overlooks Heyer Ct.Cl. Products Co. v. particular States, project, the fact like United others, a many employed mix of low and Ct.Cl. 63 primarily income units moderate make However, adopted if we even palatable to the community. it more local of standards these cases is, opinion perhaps, harbing- The another

have failed to show acted in judicial supposedly benign er a new of bad faith. AMIH propos knew that this (on top firmly executive) established approved by al had to be the New York faire, policy of laissez such I do par Board Estimate before the it quarrel philosophically not here. binding ties could enter into a contract. Rather, I it call attention here to political is a body Board Estimate judicial two departure a decades so AMIH knew it would consider restoring in the activism area of mean- expressions of opinion members of ing provision to that the United public. It seems to us that it is a calling equal pro- States Constitution proper exercise of discretion for HDA to laws, recognizing, tection terminate when it feels that course, that as now construed above that the Board of is unlikely ap Estimate require protec- clause deemed prove public protest it because of “poor” people equal as a tion class political considerations. “rich,” requires while pro- even it AMIH also claims since the people tection the laws of nonwhite city invited it to sponsor and equal to that of whites. Here expend money caused it develop prior strained differentiation of our acceptable plans project, for the law, on per the basis that this was estopped from denying claim AMIH’s (even cent middle income if expended for sums in reliance originally primarily intended to benefit city’s actions. As municipalities far as nonwhite, probably and therefore lower concerned, are the New York courts income, ghettos residents clearly rejected such a doctrine. law, York), City New that case so far v. City Emerman of New gave as it protection constitutional A.D.2d (1970).15 N.Y.S.2d it, needing area to those most pushed has been further back on the Affirmed. shelf. (dissenting): Judge OAKES, Circuit is by It no means a confession that this dissent dou- majority opinion proposes presupposes, I suppose, that housing is, if standard in not a preferred ble constitutional or even “right,” if a fundamental cases—“strict” one of the most ba- sic necessities, high contemplates very just housing project because means a roof of, exclusively, over the or low income percentage head of an American individual units, simple “rationality” if in- of his or family, her because it in- percentage of middle carries goodly cludes a with it a bundle of consequences theory on the apparently deeply involve our dai- units — *8 ly lives as white is for American citizens, that middle income as voters, as students, non- learners, for as people and low income job seekers. pro- estop asserting particular might it a from Construction Planet reliance on 15. Plaintiffs’ cry a far Educ., of that contract. That is vision 7 N.Y.2d Corp. v. Board body holding governmental can (1970), a mis- from that is 165 N.E.2d 758 N.Y.S.2d certain ac- be held to a contract because of York Court placed. that case the officials, parties all taken when merely (4-3) tions a board Appeals that held regard power no knew the officials had with involved that action take could itself education binding that a contract. to enter into entered into it a contract It oversimplification would be an is This a latest in line say of cases in “right that a housing” private which a developer, not in seeking contemplation forebears, of our build a low housing project income because which anyone, by moving use governmental 100 miles makes subsidies, more or less westerly could find unable to his secure the necessary govern- own home- stead. may One suggest years approval mental later, permit the project to that such right proceed. shelter is As background to litiga- “funda- this mental” many sentiment, when people tion right no is the or wrong, matter they try what to do are partial confined at least solutions to many liv- ing in that part urban problems may where America’s grocery found prices and crime highest, breaking metropolitan rates are down gar- income- bage is last, collected group soft clustering, coal the poor with still concen- fuel, burned for windows trated in broken, political are certain subdivisions, worst, schools are medical city.”2 Superior care is “central least education- jobs are a subway opportunities, ride al potential and an edu- for better cation away. housing to be built on presently underu- land, presupposes tilized and an increasing also This dissent number of laws means those jobs appear all to lie protection equal generally areas— subsidize, and foster aid beyond the reach of which laws ur- “suburbs”— ban merely those laws poor. Coupled policy, with this social given discrepancy antisocial con- is an penalize understandable prohibit or reluctance on which question that part of the population low density The fundamental duct. com- with is grant case deals munities to easy easy-to-gloss-over access to their any constitutional resources.3 We there are have then a wall whether court-enforced) remedies presently perforce exists between affluence (and rea- racial/social poverty opposition for wall which some local have at- —a (out- opportunities tempted litigation at, new breach aimed sons controls, otherwise would ghetto) or as here pro- land use e.g., side ghetto for its moting low available or low middle income made housing in what want of a better residents. present setting of The factual generic name I call will the suburbs. a subtle and a time both at the same has Most of raised, this litigation typically has side reflects a The subtle side. stark community’s attempts involved, and certainly claims un its ra- to conceal der clause both of negativism against motivated cially racial and of discrimination wealth dis residents, by use housing for inner (although crimination since San Antonio local disguise legitimate Rodriguez, School District v. is that there was The stark side cerns. 93 S.Ct. 36 L.Ed.2d 16 here involved defeat of the carry claims of wealth discrimination no parochialism, victory another yet weight). g., Kennedy Park Homes E. wall formidable helping perpetuate the Lackawanna, Association v. poor the urban to exclude serves denied, cert. communities the more affluent from 28 L.Ed.2d 546 metropolitan areas.1 fringe of our (1971); Spanish Southern Alameda Change, Action 300 involved, & Soc. 2 Yale Rev.L. community here North The local Glazer, Up” “Opening (1972). On But see Riverdale, of New is not a suburb Suburbs, Interest The Public planning district. its own latridis, generally advertisement for a 2. See 3. A November Haar & (hereinafter (1974) town-sponsored “public television service” Poor in Suburbia cited as succinctly: Haar); put very Downs, Up program “Is the on- Opening A. the Suburbs: creeping (1973); slaught sprawl Strategy eastward An of urban Urban for America County? Branfman, Trubek, Measuring to Suffolk New York Cohen & humanity threaten the se- Does the mass of Invisible Wall: Land Use Controls and the living Poor, renity was once Residential of suburban en- Patterns of the 82 Yale L.J. 5, 1974, Times, (1973); Spector, joyed?” Opening Up N.Y. Nov. Shields & cols. *9 (city ed.). the Suburbs: Movement 7 8 Notes on a for Social & 1074 Speaking Organization diffusion, creating v. City of without other Union died (9th 424 1970). weakening political Cir. of problems —such moment. power considerable —of present The decision undercuts the statement in court Kennedy Park Concededly on this review we are not Homes, leading a case in this area of the bound the usual rules requiring us to law, that give special weight to findings made [ejven City’s were we accept a district judge, since here his role was allegation any here discrimination simply read, we, as can printed thoughtlessness resulted from rather pages of a already record made. As scheme, purposeful City than a such, the findings below that there was may escape responsibility plac- no racial underlying motivation the fail- ing its black a citizens under severe ure of the Housing Development disadvantage justify. which it cannot (HDA) Administration to submit such, contrary

As it also runs to more final proposal to the Estimate,5 Board of recent circuits such as cases from other and no racially discriminatory effect Housing United Farmworkers of Florida Project, flowing therefrom, clearly seem to me Beach, Delray 493 City Inc. v. of erroneous.6 I will findings discuss these 799, (5th 1974), F.2d 801 Cir. Gautreaux first. Chicago Authority, 503 F.2d The here question originated in (7th 1974), Joseph 930 Cir. Skillken part of a program for scatter-site sub- Toledo, F.Supp. & Co. v. 380 228 of sidized outside of. inner (N.D.Ohio 1974), recognize all of which “ghettos,” of which New York has its importance, judicial providing share. This was by 16, announced then remedy community where situations Mayor John Lindsay 1966, on March opposition pred- to low income doubtless as program keep of his upon icated racial I discrimination.4 the City “cool” in an era of national would follow Park in its view Kennedy tension, urban any but in event so as to equal protection demands of the advantage of, take in the words of his clause, even though I have number of press release, “underutilized areas in out- doubts, misgivings, if not valid- as to the 7 lying sections of ity or value hypothesis City.” of the social September, Newsletter of problems minority groups concen- Department City Planning, trated inner announc- areas can be reme- denied, Inc., Builders, Cir. Appeal cert. 402 U.S. 91 4. See S.Ct. also of Kit-Mar (1970) (striking L.Ed.2d 661 439 Pa. 268 A.2d 765 Girsh, requirements); Appeal down lot size agree majority I with the that Palmer v. (exclusion (1970) 437 Pa. 263 A.2d Thompson, apartment buildings zoning inquiry L.Ed.2d 438 does not exclude plan unreasonable). neither of While into motives in a claim of racial discrimina- proven these cases discrimina- involved racial language tion. While there is it is the tion, they express stand- the need for a strict facial content or the effect of a law which reviewing zoning plans ard in local which fail provide proof discrimination, must id. regional housing to take into needs. account 1940, throughout opinions Jack, But see United States v. of Black Palmer, there are constant references (E.D.Mo.1974), rev’d & re- “meager” quality of the record then be- 1974). (8th Cir. manded 508 F.2d 1179 case, present fore the court. one, record is a substantial and while the plan 5. This is not was sub- a case where a proof circumstantial, of racial motivation is rejected by Esti- the Board of mitted to and persuasive is nonetheless to me. authority. approving Aceve- mate or final Cf. County, housing program at 1081- do v. Nassau 500 F.2d scatter-site had the sure, purpose providing opportunity is no To be stated guarantee would of Estimate “status the Board advancement” of the residents any plan City’s approved ghettos. up Proponents “opening good phases, faith various but absent suburbs” set of its forth number reasons dispersing groups, consisting know. At the submission never to it we will racial very least, citizens, “best efforts” were lower and it seems to me middle income American throughout required v. Chi- of the HDA. See Gautreaux underutilized areas suburbs, Authority, (7th cago Housing long in addition to cherished no- *10 11 sites includ- low-middle designation of income scatter-site housing ing formal bar, pointed development Faraday out that the at Wood that re- ing the one changes City’s housing sulted in its of form phase of the and ulti- object of this mate housing opportu- original concept demise. The open “to for was program white, development the sound, predominantly called for a 300-unit nities project, with 150 neighborhoods for those units for low income middle-income citizens;8 ghettos. and 150 for middle City’s the income aft- now confined ” strong added.) community opposition er policy (Emphasis the . August September 2 and quite was stated program the hear- behind ings planning walls the officials cannot breach the cut this simply: back “[Y]ou to a low component income you only if build within of 20 ghetto of the to 30 opinion per only.9 Again, seems to cent majority continuing after them.” community opposition purpose expressed this stated ignore me to emo- tionally May at a Faraday hearing make thereby somehow seeks to board,10 planning local housing project primarily expressed into practically income the of middle whites. formation the benefit of however, North was, project primarily for Riverdale Civic Association in op- It position income nonwhite project, of low the benefit release, said in a mayor’s press residents. ghetto issued in the heat of a campaign, reelection to be examining the Faraday defeat of Subsequently dead. it locally pro- Wood, special signifi- two facts are of posed to rezone Wood sec- determining whether cance in it ra- density tion to a lower classification. At cial discrimination blocked point, City cut out the low First, in- site was located in component altogether, making the predominantly white North River- project, it, or what was left of Bronx; per section of the in the 1960 dale cent per middle income and 50 cent el- population census North Riverdale had a and, November, derly, after an all 12,376, per of which 97.7 cent of elderly one. While there is dispute some white, per Negro per 2.0 cent and 0.3 whether the then administrator of HDA Second, cent it Puerto Rican. was com- representative told a of the National munity opposition concept to the elementary justice: provide proposal, tions of social July 28, 1967, filed indicated a will- greater job opportunity; ingness provide access to to build 465 units with an mix slums, escape high from the with their low and middle income units. standards; crime ratios and low 9. An HDA memo in evidence greater opportunity (and attributed the educational furnish shelving original proposal “opposi- incidentally, thereby necessity avoid the neighborhood tion from the busing equalization purposes); to low-income for educational times, . . At all it should combatting ..” poverty to redistribute the cost of noted, contemplate helps effectuate; did at least 10 and the social ills it to halt usage elderly per city; citizens. decay cent of the inner and to avoid a society polarized. is divided if not See meeting Opposition ba- at this Downs, Opening Up A. the Suburbs: An Ur existing threat of the sis of the Strategy hap ban for America 115 It values, community property overtaxing pens mayor’s housing program, schools, possibility and the facilities contemplated the extent the increase of interesting crime. It is increased promotion choices and of a more ra stated, meeting Planning “Some official at the cially community, balanced furthered U.S. your told me that leaders have Department Housing Develop and Urban reluctance to face issue [of there is local [the] VIII, (HUD) policies. Rights ment Title Civil opportunity” providing “increased for “status Act, Housing Act Fair U.S.C. “today’s poor mostly Ne- advancement” — policy “It states § groes discus- and Puerto Ricans”] provide, within constitutional United States to sion, may hidden in a smokescreen limitations, housing throughout for fair objections.” seemingly plausible State- 3608; United States.” See also 42 U.S.C. § Rabinow, Barney Executive Assistant ment of Director, City Housing Authority, v. New York Otero Planning, May Department 1973). F.2d 1132-1134 See (Plaintiffs’ Ex. Haar, supra at 319. Authority’s original The New original AMIH units. The plan called “among the most if not considered Discrimination Against Committee *11 community privileged city” most “that agreed that he (NCDH) according City Planning issue, to Committee a fundamental was issue racial the “high-rise” As executive.12 for the ob- the Riverdale issue in important very only project the jection, de- but no doubt there is . .11 . area signed to be built on one out of community opposition to acres, high-rise with the eight structure it. that killed project scatter-site street, and shielded from the back cases, these As most of to grasp the apartment buildings (not many other opposition, true nature of the it is neces- income) built, including for low been sary to the validity examine of the ob- zoning exception high-rises. No jections actually voiced, to determine Finally, needed for 1971 they whether were plausible rational and Faraday left city rezoning Wood for fu- only superficially or used, valid and and, apartment inter- ture construction sciously or unconsciously, to mask dis- estingly, U.S.S.R. Mission crimination. Cf. Olzman Lake Hills Nations, ultimately which United ac- Inc., Club, (2d Swim 495 F.2d 1333 question, the site in quired is in fact justifications opposition building large high-rise apartment expressed by the district court were community without opposition. structure “rapid population growth and subsequent Times, 13, 1974, New York See Jan. § overtaxing of community facilities” and 1 (city ed.). at All my of the evidence to expanding “the number of high-rise supports proposition mind apartment buildings.” But there was no oppose reasons advanced scatter-site evidence adduced in this sup- record to at were invalid concerns; port those on contrary, only a cover for and discrimination. Faraday Wood site was considered all my Even if interpretation these officials testifying at trial as incorrect, however, were facts appropriate. most As to overburdening very racially least there was a discrimi- schools, there was every indication that natory effect. The district court relied already construction of the approved and on, heavily Judge opinion Lumbard’s budgeted F. Kennedy John Educational reemphasizes, allegation “the Center Riverdale would resolve all determination did not have an unconsti- years classroom come; needs racially discriminatory tutional effect be- project developer, moreover, offered to cause of the 80% units 7,000 provide square feet extra class- were reserved for middle income families space room pending completion, to avoid thus project’s the brunt ter- any problems. temporary Parking objec- 13 mination was borne those families.” were tions taken care incorporat- accept I would not allegation any ing underground garage large enough event, originally since the project was per to handle one car dwelling unit. designed per cent or 150 in- low objections Recreational area were ade- families. But accepting even .come quately responded opening up to allegation, per what about the 20 cent of use seven eight acres e., i. 60 families left in the inner on site. showing No whatsoever was city? likely If as is the mix of low and any made of adverse transpor- effect middle changed income families so or police, tation facilities fire hospital palatable as make the more services; indeed the only evidence in the the North Riverdale community, never- record was all of these were in rejection theless still in a community abundance which was except hospital He did 12. administrator, services if the de- Walsh, The HDA Albert said velopment exclusively elderly. for the he told the NCDH official that he “be- lieved that had been able [he] or would be Ward, however, Judge In fairness he prejudice] able ... to isolate [racial said at 656. responsible majority from the “70-80%.” the commu- nity . adversely affected number ghetto ing a “compelling state interest” for Are we have two residents. different abandonment the project: Lindsey v. rules, as majority constitutional opin- Normet, 56, 74, 405 U.S. 92 S.Ct. suggests, depending ion on the (1972); L.Ed.2d Palmer v. Thompson, event, any In mix? I believe we have a 29 L.Ed.2d different factual case from the one con- (1971); Village 438 raas, of Belle Terre v. Bo- by the judge ceived district ruled majority. by the L.Ed.2d 797 and Acevedo v. Nas- me, effect, measuring County, it seems sau 1078 at 1082 *12 remembered, majority Cir.1974).15 as has to done, Faraday Wood language has not contains Lindsey v. Normet program was of a which is no constitu that there effect to the action the nature of affirmative right qual in a certain tionally protected remedy past effects of discrimina- case does but housing, ity of say discriminatory a decision terminate To site selec racially tion. involve discriminatory racially non-selection). Lindsey has no v. Nor (or tion the reason that disregard essentially is to a case deal moreover, is effect met, housing adopted in plan relating process scatter-site due procedural ing with de- Wrongful instance—a reason Entry the first and Forcible state to a City itself. in advance statute, clared than the rather Detention here. claim for the sole reason The provide was to decent Likewise inapposite is Palmer v. city poor pres- inner who for the Thompson which held that could residing in the New said to be ently not be forced to operate continue to rec- units were ghettos. Middle income facilities, reational regardless of its moti- in such because the trend devel- included in closing vation them. opinions The in reasons, was, number opments Palmer are replete with references to low and middle income units.14 to mix the fact that the case was dealing with proven projects mixed to be Such non-essential recreational facilities—Mr. including than successful those more Justice Blackmun referred them in his majority housing. The income only low concurring opinion as “nice-to-have but facts, recognize fails to these and opinion not essential.” 403 229, U.S. at 91 S.Ct. ef- primary doing so neutralizes at present 1947. The case involves a the decision to terminate the Far- fect of clear necessity, housing, and a duty of was an project, which effect aday Wood City of New recognized by the city poor, primarily mem- inner on the provide problems solutions to the groups. minority bers of of segregated housing. As this court As I read majority opinion, it re- said in Otero v. New York City Housing principally lies on four cases to Authority, sustain 1133, 484 F.2d at “the Au- position that there need be thority no show- under obligation [both Valtierra, v. on James 14. The Newsletter September, (1971); Planning until 28 L.Ed.2d 678 which City proposed Department Val to consider I will continue better advised the scatter-site indicates that almost all plan projects mixing being on the sanctity based involved tierra primarily contemplated English doing v. groups. See referendum. dissent One of the reasons income Huntington, greater Cir., ac- Town to promote community (1971). tak courts have 327 n. 5 Other ceptance g., E. Gau of Valtierra. en the narrow view majority 15. The also mentions at n. 5 San (7th Chicago, v. City treaux Antonio School District v. Rodriquez, 1973); Mary of St. of Providence Sisters 36 L.Ed.2d 16 Evanston, Woods but present does not involve a claim (N.D.Ill.971). also See F.Supp. brought discriminatory treatment about by Exclu Protection Clause and Note, Equal majority wealth suspect classifications. Dandridge, Zoning Valtierra and After sionary Judge does not rely, as did Ward, 362 81 Yale L.J. 61 statutory] silentio, act Kennedy affirma- Park Homes sub stitutional one tively integration achieve must assume that was reluctant housing.”16 (Emphasis added'.) impose duty an affirmative to construct income low on a Village Boraas, of Belle Terre v. while demonstrably segregated or with a histo- some contains rather broad language ry, long too developed too well zoning regarding in a context preser- reconstruct, of concentrations of minori- vation environmental amenities ty groups in the city. Here, central against onslaught of nonfamilial li- however, we have the of New York festyles, surely does not support an talking we are about integrated abandonment of the “strict scrutiny” tiny on a scale—in one —albeit case; test in a racial discrimination Belle such, limited area. As principle, there Terre, moreover, tiny concerned a vil- is no difference between this case and lage, square one mile in area and con- Park; Kennedy may be more taining only a few residents, hundred bridges out of Harlem than the one out compared to North many Riverdale’s ghetto, of Lackawanna’s mentioned in larger population times and area. here, majority opinion ability I finally then to Acevedo and I *13 population of nonwhite concentrations in am troubled it because it is not so to cross the river easy distinguish appellants would justice18 greater. is none the to social out; make suggestion their this relief, In terms of late date governmental involves obstruction record before us is hard to private efforts while Acevedo held whether an alternative site in Riv- know only that Nassau County had no affirm- possible is available for construc- erdale duty ative to build family low-cost hous- comparable project, tion or whether ing at Mitchell Field I find altogeth- plans any developed by appellant convincing. was, er There however, no AMIH would a site. be useful at such showing in Acevedo that housing in Nas- obviously be matters would These County sau racially segregated de upon re- court to consider the district jure or de facto.17 Assuming that mand.19 panel Acevedo did not intend to overrule Judge Mansfield’s housing project went on to opinion say do, question to be “Not such only may [discriminatory] built in an area “in close to other proximity enjoined, be but affirmative action significant practices areas populated numbers to erase the effects of discrimination past Blacks.” Id. In Acevedo there no duty desegregate be or patterns may conceded County, there was here 484 F.2d at promulgated dered.” 1133. And see Swann v. to build low income Charlotte-Mecklenburg housing. Board of Education, 91 1, 18, 1267, 28 L.Ed.2d 554 Harlem, course, say, This is (1971); Griggs v. Duke Power 401 Co., U.S. non- York’s only is New Harlem, or Spanish 431-432, 91 S.Ct. 28 L.Ed.2d 158 ghetto area. white (1971); Associated General Contractors v. (1st 490 F.2d 9 Altshuler, Cir. cert. 19. The relief the prob- requested points up 416 denied, attempting face court lems which any (1974). L.Ed.2d 307 Norwalk CORE v. Nor exclusionary counteract the effects of Agency, walk 395 F.2d 920 Redevelopment legislative suggests that a solu- practices 1968) leading is Cir. with Otero the other to this would very likely tion problem requiring Second Circuit case ac affirmative integrat- a court directed plan superior tion to more for nonwhites. provide housing. g., Ann. ed e. Mass.Gen.Laws See, The South to face to these up problems (which (Supp.1973) §§ provides 40B 20-23 ch. ago. almost two decades v. Public Heyward agency level with the for a state power (5th Administration, objections to the local community override housing); Note, of low income construction 17. The district court Acevedo specifically Zoning Law: Massachusetts Appeals “The before the court evidence found Wall, in the Exclusionary First Breach disclose of fixed does not existence pat- legis- (1974). fact B.U.L.Rev. home in Nassau County.” terns of ownership might a broader or able to lature provide at 1390. Aceve- Additionally, 369 F.Supp. remains, very how At the least

ever, my mind a valid claim what supported damages, one which grounds alone. Restate

contractual See 90; Industries, Keco

ment of Contracts § States, F.2d

Inc. United (1970). Knapp, 192 Ct.Cl. See

Enforcing Bargain, the Contract (1969). Appel

N.Y.U.L.Rev. 688-90 $200,000

lant AMIH states that over attempting produce and in

invested

revising which was never sub

mitted to the Board of Estimate for rea

sons which I can believe be treated as such,

amounting to bad faith. As some

relief, even under New York law and our jurisdiction,

pendent should be available. Planet Corp.

Cf. Construction v. Board Education, 7 N.Y.2d 198 N.Y.S.2d 165 N.E.2d 758 would, then,

I reverse and remand. *14 HEAD and

Garrett WOUNDED Nichols, Appellants, Bernadine the OGLALA OF COUNCIL

TRIBAL PINE RIDGE TRIBE OF SIOUX the Solicitor RESERVATION Department Inte States the United

rior, Appellees. 74-1472.

No. Appeals, Court

United States Eighth Circuit. 12, 1974. Dec.

Submitted 3, 1975. Jan.

Decided accompanying remedy way than the courts in no above sent, footnote 4 of this dis- better away compelling nature of the have not been unaware that enforce- takes from the act, somebody proposition proposition that ment of the clause some- application making times has the result of the courts I believe is demanded history always equal protection clause in this situa- active in areas where a of not Kennedy benign neglect tion. The Park Homes Otero has resulted in local racial dis- courts, the cases in the text and those in crimination.