523 F.2d 88 (2nd Cir. 1975), 840, Trinity Episcopal School Corp. v. Romney

Docket Nº:840, 902, Dockets 75-7061, 7092.
Citation:523 F.2d 88
Party Name:TRINITY EPISCOPAL SCHOOL CORPORATION and Trinity Housing Company, Inc., Plaintiffs-Appellants, Roland H. KARLEN et al., Intervening Plaintiffs-Appellants, v. George ROMNEY, Secretary of Dept. of Housing and Urban Development, et al., Defendants-Appellees, Strycker's Bay Neighborhood Council Inc., Intervening Defendant-Appellee.
Case Date:July 24, 1975
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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523 F.2d 88 (2nd Cir. 1975)

TRINITY EPISCOPAL SCHOOL CORPORATION and Trinity Housing

Company, Inc., Plaintiffs-Appellants,

Roland H. KARLEN et al., Intervening Plaintiffs-Appellants,

v.

George ROMNEY, Secretary of Dept. of Housing and Urban

Development, et al., Defendants-Appellees,

Strycker's Bay Neighborhood Council Inc., Intervening

Defendant-Appellee.

Nos. 840, 902, Dockets 75-7061, 7092.

United States Court of Appeals, Second Circuit

July 24, 1975

Argued March 10, 1975.

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Eugene J. Morris, Martin Stuart Baker, New York City (Demov, Morris, Levin & Shein, New York City), for plaintiffs-appellants.

David P. Land, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty., S.D. N. Y.; Peter C. Salerno, Asst. U. S. Atty.; Marttie L. Thompson, Community Action for Legal Services, Inc.; John de P. Douw, Staff Counsel; W. Bernard Richland, Corporation Counsel of the City of New York; Leonard Koerner, Robert F. Liner, Hadley W. Gold, Asst. Corp. Counsels, New York City, of counsel), for defendants-appellees.

Before MOORE, MANSFIELD and GURFEIN, Circuit Judges.

MOORE, Circuit Judge:

The plaintiffs Trinity Episcopal School Corporation (Trinity) and Trinity Housing Company, Inc. together with Intervening-Plaintiffs Roland H. Karlen, Alvin C. Hudgins and CONTINUE (Committee Of Neighbors To Insure a Normal Urban Environment) appeal from judgments in favor of defendants, who for purposes of brevity may be stated as the United States Department of Housing

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and Urban Development (HUD), its Secretary, the Regional Administrator of HUD, the New York State Division of Housing and Community Renewal and its Commissioner, the Mayor of New York, the City Planning Commission, various City officials and the City of New York (City). Strycker's Bay Neighborhood Council, Inc. is an Intervening Defendant-Appellee.

Trinity (non-sectarian and inter-racial) is an elementary and secondary educational institution (grades 1 through 12) founded in 1709 and presently located between West 91st Street and West 92nd Street and between Amsterdam and Columbus Avenues in New York City. Prior to 1962 because of the deteriorated state of the area Trinity claims that it was considering moving its facilities outside of the City of New York.

Trinity argues that, relying upon representations of the City and upon the West Side Urban Renewal Plan (the Plan) promulgated by City and State agencies to rehabilitate a designated twenty-block area, 1 Trinity abandoned its plans to move and instead agreed, together with Trinity Housing, to become a sponsor of Site 24 2 in the renewal area to develop additional school facilities and housing. The school addition was to be financed by Trinity and the housing was to be a "middle-income" project under the Mitchell-Lama Law. (McKinney's, New York Private Housing Finance Law. Consol.Laws, c. 44B, Vol. 41.)

Trinity asserts that it was induced to "sponsor" Site 24 upon representations of certain government officials that the Area would be developed to include at most 2,500 units of low-income housing and that in the middle-income buildings there would be 30% Low-income and 70% Middle-income housing units. 3

The intervening plaintiffs assert that they purchased their brownstone dwellings and rehabilitated them relying upon similar City representations as to income mix of the area.

The focal point of this controversy is Site 30, originally designated for middle-income housing, which has been changed by the defendants to low-income housing containing 160 units. 4 The plaintiffs would have the court reinstate Site 30 as a middle-income project and enjoin both construction thereon as low-income housing and the use of federal funds therefor. The reasons assigned for court interference may be summarily condensed as follows:

I. Breach of contract by defendants in failing to live up to their representations.

II. Failure by the defendants to conform to the purposes and intent of the Plan to establish an integrated community in the Area.

III. Establishment of a "pocket ghetto" of a nonintegrated nature (namely, a concentration of low-income housing) in Trinity's immediate area; and

IV. Lack of compliance by HUD with essential requirements and conditions of the National Environmental Policy Act (NEPA).

Defendants contend that the 2,500 unit figure for low-income housing represented merely an estimate or goal and further emphasize that the contract and Plan authorized the City to make changes in the Plan as development progressed. They argue that the change of Site 30 from middle-income to low-income housing was necessitated by the need to relocate persons removed from the Area during renewal and rehabilitation as well as by the general housing needs of low-income residents of Manhattan.

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Finally they argue that HUD was not required to consider any alternatives to low-income housing on Site 30 because the project will not significantly affect the environment and because there are no unresolved conflicts concerning the use of alternative resources.

The trial court gave the most meticulous attention to the many issues involved, most of which were factual. Twenty-five days of non-jury trial over a period of eight months, hundreds of exhibits, hundreds of pages of affidavits and testimony, all have resulted in a record of 13 large volumes, which together with briefs have been presented to us for our appellate consideration. The facts and the law have been set forth in an opinion by the trial judge of 41 pages which bespeaks the careful consideration which he gave to the case. 5 In commencing appellate review we can well use as a prologue the trial judge's epilogue:

"This case has troubled us greatly. The goal of a racially, ethnically, and economically integrated community is sought by many, but the road to achieving it is protracted and ofttimes perilous, a course frequently encountered where objectives are laudatory. The hopes, fears and needs of different classes and races must somehow be reconciled if urban peace is to be attained." (387 F.Supp. at 1085.) This goal was obviously the intention of the Congress and the Plan. Equally obvious was it the goal in the minds of the plaintiffs when they agreed to participate in the Plan. In their opinions the deviation has been so drastic as to call for the relief which they seek.

I.

It would be pointless to reanalyze the factual background so thoroughly and ably covered in the trial court's opinion. Basic to plaintiffs' position is their claim of breach of contract. However, before entering into the contract Trinity knew that the Plan had previously undergone four revisions and that these revisions had materially altered the original concepts as to the low-income, middle-income ratios. Furthermore, the contract itself specifically authorized modification and amendment by the City. 6 In view of this express provision, an implied provision to the contrary would not be warranted. The trial court properly held that the changes in the number of low-income units and the ratios between low and middle did not constitute a breach of contract.

With respect to the contention that the defendants' failure to adhere to a maximum number of 2,500 low-income units and a 70 to 30 percent ratio of middle to low income housing violates the purposes and intent of the Plan, the evidence regarding the extent of crime and social problems associated with "ghettoization" was conflicting. Furthermore, we cannot label as clearly erroneous the District Court's conclusion that existing or threatened community problems or deterioration are not attributable to an increase in the number of low income families in the community rather than to other causes.

II.

Plaintiffs, relying on our decision in Otero v. New York City Housing Authority, 484 F.2d 1122 (2nd Cir., 1973), argue that the conversion of Site 30 from middle- to low-income housing will cause a concentration of three public housing projects on 91st Street the Trinity block and that a "pocket ghetto" is thereby created in that area. The trial judge concluded "for the purposes of this litigation that the tipping point of a community is that point at which a

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set of conditions has been created that will lead to the rapid flight of an existing majority class under circumstances of instability which result in the deterioration of the neighborhood environment." (387 F.Supp. at 1065-1066). To determine whether an area has reached that point he specified three criteria: (1) gross numbers of minority or measurable economic or social group families likely to affect adversely Area conditions; (2) the quality of community services and facilities; and (3) the attitudes of majority group residents. As to (1) the court found that plaintiffs had shown "nothing to rebut the conclusion that the Area is both racially and economically sound." As to (2) the court found that the crime and vandalism in the Area was localized within three controversial buildings and concluded that despite "substantial testimony of numerous deplorable antisocial acts within the Area, the totality thereof does not depict a general deteriorating condition." As to (3) "Community Attitudes" the court believed that "where, in light of the lack of alternative decent low income housing, a tipping analysis may mean an...

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