Kennedy Park Homes Ass'n v. City of Lackawanna

• Decision Date: 13 August 1970
• Docket Number: Civ. No. 1968-385.
• Citation: 318 F. Supp. 669
• Parties: KENNEDY PARK HOMES ASSOCIATION, Incorporated, Colored People's Civic and Political Organization, Inc., James M. Thomas, Samuel Martin, the Diocese of Buffalo, N. Y., Plaintiffs, United States of America, Plaintiff-Intervenor, v. CITY OF LACKAWANNA, Lackawanna, New York, et al., Defendants.
• Court: U.S. District Court — Western District of New York

318 F. Supp. 669

KENNEDY PARK HOMES ASSOCIATION, Incorporated, Colored People's Civic and Political Organization, Inc., James M. Thomas, Samuel Martin, the Diocese of Buffalo, N. Y., Plaintiffs United States of America, Plaintiff-Intervenor, v. CITY OF LACKAWANNA, Lackawanna, New York, et al., Defendants.

Civ. No. 1968-385.

United States District Court, W. D. New York.

August 13, 1970.

COPYRIGHT MATERIAL OMITTED

Will Gibson, Buffalo, N. Y., and Michael Davidson, New York City, for Kennedy Park Homes Association, Inc., Colored People's Civic and Political Organization, James M. Thomas and Samuel Martin.

Kevin Kennedy, Buffalo, N. Y. (Charles S. Desmond, Buffalo, N. Y., of counsel), for the Diocese of Buffalo.

Gerald W. Jones and Stephen P. Passek, Attys., Dept. of Justice, Washington, D. C. (Jerris Leonard, Asst. Atty. Gen. of United States, and H. Kenneth Schroeder, Jr., U. S. Atty., Western District of New York, on the brief), for United States.

Condon, Klocke, Ange & Gervase, Buffalo, N. Y. (John W. Condon, Jr., and Grace Marie Ange, of counsel), Buffalo, N. Y., for defendants.

DECISION AND ORDER

CURTIN, District Judge.

COMPLAINTS

On December 2, 1968, Kennedy Park Homes Association, Inc. (hereinafter referred to as K.P.H.A.), Colored People's Civic and Political Organization (hereinafter referred to as C.P.C.P.O.), James M. Thomas and Samuel Martin filed a complaint against the City of Lackawanna, Mayor Mark L. Balen, Director of Development Frank Cipriani, Chief Engineer Edward Kuwik and the then members of the Lackawanna City Council charging violations of the Equal Protection and Due Process Clauses of the Fourteenth Amendment, the Civil Rights Act (42 U.S.C. § 1983), and the Fair Housing Act of 1968 (42 U.S.C. § 3601 et seq.).

The complaint alleges that the Diocese committed itself to sell to K.P.H.A., a non-profit organization formed by the C.P.C.P.O., 30 acres of its approximately 80 acres of vacant land located in Lackawanna's third ward for development of a low income housing subdivision. The two individual plaintiffs allege that they intend to purchase homes in the proposed subdivision.

Plaintiffs contend that certain resolutions amending the City's zoning ordinances to restrict all land referred to therein to the exclusive use as a park and recreation area and declaring a moratorium prohibiting the approval of all future subdivisions were passed in October, 1968 by the City Council for the purpose of denying low income families —whether they are elderly, Negro or Puerto Rican—the equal protection of the laws in obtaining decent housing. The Diocese contends the purpose of these resolutions was to deny it the right to use and dispose of its property.

Among other things, the plaintiffs seek a judgment declaring the defendants' use of the City's zoning and appropriation powers an unconstitutional deprivation of plaintiffs' rights and mandatory relief requiring the defendants to take steps toward the approval of the subdivision. Plaintiffs also seek to enjoin defendants from enforcing the October, 1968 zoning and moratorium ordinances.

On February 5, 1969, this court—the defendants offering no opposition— granted the United States of America leave to file a complaint in intervention pursuant to Section 902 of the Civil Rights Act (42 U.S.C. § 2000h-2). Plaintiff-Intervenor invokes this court's jurisdiction under Section 813 of the Civil Rights Act of 1968 (42 U.S.C. § 3613).

The allegations in the complaint in intervention are substantially the same as those in the plaintiffs' complaint. In its prayer for relief, the Plaintiff-Intervenor asks the court to enjoin the defendants from engaging in any other acts or practices which have the effect of depriving Negroes of their right to purchase or rent dwellings in Lackawanna without regard to their race or color.

ANSWERS

The original answer filed January 29, 1969, an amended answer filed February 17, 1969, and the answer to the complaint in intervention filed February 17, 1969 generally deny the allegations of the complaints. The answers also assert five "defenses": (1) Defendants allege that the City desires, and very much needs, a park and that construction of the proposed subdivision in the Martin Road area (the only large and centrally located vacant area left in Lackawanna) would forever foreclose the City's opportunity to have such a park; (2) Defendants allege that the sewers in the Martin Road area are so overloaded that they could not tolerate the additional sewage of a new subdivision; (3) The Diocese of Buffalo has no standing to sue in this action; (4) The complaint fails to state a cause of action; and (5) The plaintiffs have failed to exhaust all administrative procedures to obtain the relief sought herein.

On June 19, 1969, the court granted the defendants leave to file a supplemental answer alleging the rescission of the October, 1968 ordinances on February 26, 1969. The thrust and purpose of the supplemental answer was to show that no legal impediment stood in the way of plaintiffs' proposed subdivision.

HISTORY OF LAWSUIT TO DATE

In addition to the complaints and answers discussed above, certain other pre-trial proceedings bear noting to understand this lawsuit.

When the lawsuit was commenced, the plaintiffs applied for a temporary restraining order and a preliminary injunction restraining the defendants from rezoning the Martin Road area for parks and recreation and from enforcing the October, 1968 ordinances. No order was signed because the defendants consented to hold their park rezoning plans pending a final decision in this case.

After the defendants filed their supplemental answer setting forth the rescission of the October, 1968 ordinances, the plaintiffs submitted a "Sanitary 5" form to Mayor Balen for approval. The "Sanitary 5" form, with the mayor's approving signature, is in the nature of an application by the City on behalf of a subdivider to the Erie County Health Department for approval of a sewer extension.

On November 14, 1969, this court gave the defendants two weeks to report on their disposition on the "Sanitary 5" form. On November 28, 1969, the plaintiffs and the court were advised that the mayor refused to sign the "Sanitary 5" form. This refusal effectively stalled any further progress in plaintiffs' attempt to obtain approval for their subdivision plans.

Afterwards, the defendants moved for a judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. The defendants argued that their affirmative defenses and the subsequent rescission of the October, 1968 ordinances established a "complete defense" to the plaintiffs' actions. Pointing to the specific allegations of the complaints, the defendants contended that the only act of any of the defendants complained of in the complaints was the passage of the October, 1968 ordinances. Since the specific acts complained of were rescinded, the defendants argued, plaintiffs' actions were moot. This argument was directed against all plaintiffs, but especially against the Diocese whose right to dispose of its property, the defendants urged, was no longer impaired.

In light of the mayor's refusal to sign the "Sanitary 5" form, and noting that the complaint in intervention prayed for an injunction restraining all acts denying Negroes the equal protection of the law in obtaining decent housing, the court denied the defendants' motion in all respects.

Immediately prior to trial, extensive pre-trial statements of fact and memoranda of law were submitted by the parties. The trial began on April 9, 1970 and concluded on May 21, 1970, after 22 trial days. The parties then submitted post-trial briefs of facts and law. Oral argument was heard by the court on July 10, 1970. On all of the evidence introduced at the trial and arguments made by the parties, the court makes the following findings of fact and conclusions of law pursuant to Rule 52 of the Federal Rules of Civil Procedure.

COLORED PEOPLE'S CIVIC AND POLITICAL ORGANIZATION

The C.P.C.P.O. filed its original certificate of incorporation on August 9, 1929. This membership corporation was formed

"to promote good fellowship and to extend the acquaintance of its members and for social and political gatherings and lectures, and other amusements for the general welfare and benefit of its members."

The organization apparently went through a period of inactivity until a reactivation in February, 1962. Richard Easley has been president of this organization from its reactivation to date.

Shortly after reactivation, the organization showed interest in housing. Most of the members were (and are) residents of Lackawanna's first ward and many of them are employed at the Bethlehem Steel plant.

The minutes of the C.P.C.P.O. are replete with references to housing discussions among the membership, to nonmember speakers concerning the housing situation, and to reports of C.P.C.P.O. representatives meeting with private and governmental officials about the housing problem. In January, 1968, for example, the C.P.C.P.O. made inquiries of Director of Development Frank Cipriani concerning available vacant land in Lackawanna. They made a written offer to purchase certain vacant land owned by the City in the second ward.

In March, 1968, the C.P.C.P.O. had obtained a "commitment" from the Diocese for approximately 30 acres of vacant land south of Martin Road. On March 15, 1968, the C.P.C.P.O. created K.P. H.A., a non-profit membership corporation for the development of low income housing. Two officers of C.P.C.P.O. became officers of K.P.H.A.

K.P.H.A. plans to act as its own general contractor in building the subdivision. However, to aid in this endeavor, it will call upon specialists in various fields. One step was taken early in 1969, when K.P.H.A. retained Cleon Cervas, a Buffalo real estate broker, to conduct a survey of potential home buyers in order to determine their eligibility for...