468 F.2d 287 (2nd Cir. 1972), 2, Beal v. Lindsay

Docket Nº:2, 72-1194.
Citation:468 F.2d 287
Party Name:Gertrude BEAL et al., Plaintiffs-Appellants, v. John V. LINDSAY, individually and as Mayor of The City of New York, et al., Defendants-Appellees.
Case Date:October 05, 1972
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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468 F.2d 287 (2nd Cir. 1972)

Gertrude BEAL et al., Plaintiffs-Appellants,

v.

John V. LINDSAY, individually and as Mayor of The City of New York, et al., Defendants-Appellees.

No. 2, 72-1194.

United States Court of Appeals, Second Circuit.

October 5, 1972

Argued Sept. 11, 1972.

Kenneth G. Schwarz, Acting Atty.in-Charge, New York City (Morrisania Legal Services, and Cornelia McDougald, New York City, of counsel), for plaintiffs-appellants.

Nina Goldstein, New York City (J. Lee Rankin, Corp. Counsel, and Stanley Buchsbaum, New York City, of counsel), for defendants-appellees.

Before FRIENDLY, Chief Judge and LUMBARD and FEINBERG, Circuit Judges.

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FRIENDLY, Chief Judge:

This is the first case requiring us to apply the path-breaking decision in Hawkins v. Town of Shaw, Mississippi, 437 F.2d 1286 (5 Cir. 1971), adhered to by a divided court en banc, 461 F.2d 1171 (5 Cir. 1972). While we accept the principle that serious and continued discrimination in the level of effort expended on municipal services to areas predominantly populated by minority racial groups violates the equal protection clause, even without direct proof of "bad faith, ill will or any evil motive," 461 F.2d at 1172, we have concluded that the complaint here was properly dismissed, although not for the reasons stated by the district judge.

Crotona Park is the smallest of four multi-community parks maintained by New York City in the Borough of the Bronx. The complaint brought against New York City officials by individual black and Puerto Rican residents of areas surrounding the park and an association called Bronx Citizens for a Cleaner Park alleged that, of the four Community Planning Districts directly serviced by the park, the black and Puerto Rican population equals or exceeds 70% in three, and the percentage receiving public assistance in the four districts ranges from 22.1% to 42.2%. For the Bronx as a whole, the percentage of black and Puerto Rican residents is 32.5%, and approximately 13% receive public assistance. The proportions of black and Puerto Rican residents and persons receiving public assistance for the Community Planning Districts surrounding the other three parks in the Borough-Van Cortlandt, Pelham Bay, and Bronx-are significantly lower than in the districts surrounding Crotona Park and generally lower than for the Borough as a whole. 1 The complaint alleged that:

The maintenance of Crotona Park is almost nonexistent. What was once one of the major parks in the city is now a mass of broken glass and litter strewn about. Most of the benches and fencing are broken and non-usable. Numerous abandoned automobiles often litter the roads running through the park for days. Little or no attempt has been made to clean up the park despite numerous requests by residents of the community.

On the contrary, Van Courtland Park, Pelham Bay Park and Bronx Park are kept in near spotless condition. During warm weather seasons, numerous park personnel can be seen removing the litter created by weekend crowds. Within a couple of days, these parks are spotless.

It went on to claim that proportionally fewer recreational, maintenance and supervisory personnel were assigned to Crotona than to the three other parks. It sought injunctive and declaratory relief

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against the City's failing to equalize the equipment, facilities, services and repairs in Crotona with that in the three other parks.

The defendants responded with a motion under F.R.Civ.P. 12(b) for an order dismissing the complaint for lack of jurisdiction over the subject matter and failure to state a claim upon which relief could be granted. However, as permitted by the final sentence of F.R.Civ. P. 12(b), they appended a detailed affidavit by defendant August Heckscher, Administrator of the Parks, Recreation and Cultural Affairs Administration. Not disputing the allegations concerning the deplorable condition of Crotona Park, he maintained that this was not the consequence of any lack of effort by the City. He asserted that, on the contrary, the municipal effort at Crotona was as good as or better than that at other Bronx parks. Although Crotona contained only 146.59 acres in contrast to the much larger acreage of the three other parks, 2 a far greater number of park personnel was assigned to Crotona. He attributed the failure of the City's maintenance efforts to the high degree of vandalism at Crotona Park and Pool. He stated that his Administration had held many meetings with community representatives to discuss how the situation could be ameliorated; that $75,000 had been set aside to hire an architect or planner to work out a redevelopment plan; and that it was contemplated that $1,500,000 would be utilized for that purpose. The affidavit concluded with an assertion that the City's "consistent policy has been to provide the Crotona Park community with a high level of recreational facilities, subject to budgetary restrictions," and a denial of discrimination on the basis of race or income.

Plaintiffs countered with an affidavit of Aramentha Hamilton, Chairman of Bronx Citizens for a Cleaner Park. She noted that when she had moved into the neighborhood in 1964, Crotona "was a well-run, well-maintained park" but that, as the racial composition of the neighborhood had become more largely black and Puerto Rican, services at Crotona had deteriorated, whereas the racial mix in the neighborhoods surrounding the other parks and the services had been more stable. Specifically, there was no longer a rowboat concession at the Crotona Park lake, which was polluted with garbage; charcoal grills had disappeared; benches were broken and fences down; the comfort stations were no longer in operation; the park was strewn with litter and broken glass; and special events had been largely discontinued. She raised questions concerning the validity of the Administrator's statistics. Perhaps the workers shown for Crotona included some who were there on a temporary basis; some of the figures for Crotona included workers at the Crotona Pool, whereas the figures for the other parks did not include workers at pools, golf courses, a beach or the Bronx Zoo and Botanical Gardens; a disproportionate number of the Crotona Park workers were assigned to the tennis courts which were used predominantly by whites from outside the neighborhood; the figures did not reflect the experience of or the equipment used by the workers; and Van Cortlandt and Pelham Bay Parks had a much larger proportion of forested areas requiring little or no maintenance. Question was also raised with respect to the summer assignment of Urban Corps Recreation Interns and Neighborhood Youth Corps Workers.

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Mr. Heckscher returned to the fray with a reply affidavit designed to deal with...

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