Acevedo v. Nassau County, New York, 963

• Decision Date: 02 July 1974
• Docket Number: No. 963,D,963
• Citation: 500 F.2d 1078
• Parties: Abdon ACEVEDO et al., Plaintiffs-Appellants, v. NASSAU COUNTY, NEW YORK, its officials, employees and agents, et al., Defendants-Appellees. ocket 74-1235.
• Court: U.S. Court of Appeals — Second Circuit

Page 1078

500 F.2d 1078

Abdon ACEVEDO et al., Plaintiffs-Appellants, v. NASSAU COUNTY, NEW YORK, its officials, employees and agents, et al., Defendants-Appellees.

No. 963, Docket 74-1235.

United States Court of Appeals, Second Circuit.

Argued March 15, 1974.

Decided July 2, 1974.

Richard F. Bellman and Lois D. Thompson, Suburban Action Institute, Tarrytown, N.Y. (J. Christopher Jensen, Suburban Action Institute, Tarrytown, N.Y. and Leonard S. Clark, Nassau County Legal Services, Hempstead, N.Y., on the brief), for plaintiffs-appellants.

Cyril Hyman, Asst. U.S. Atty. (Edward John Boyd V, U.S. Atty. for the E.D.N.Y., and Raymond J. Dearie, Asst. U.S. Atty., on the brief), for defendant-appellee General Services Administration.

Joseph Jaspan, County Atty. of Nassau County, (Natale C. Tedone, Senior Deputy County Atty., Mineola, N.Y., on the brief), for defendant-appellee Nassau County and Its Officials, Employees, and Agents.

John F. O'Shaughnessy, Town Atty., Hempstead, N.Y., on the brief for defendants-appellees Town of Hempstead, Town Board of the Town of Hempstead, and the Officials, Employees, and Agents of the Town of Hempstead.

Before HAYS and TIMBERS, Circuit Judges, DAVIS, ^* Judge.

HAYS, Circuit Judge:

Appellants ¹ brought this suit as a class action against appellees Nassau County, the Town of Hempstead, New York, various officers of the county and the town, the General Services Administration, and other governmental bodies and government officials. The complaint alleged Nassau County, the Town of Hempstead, and their respective officials violated the rights of appellants and others similarly situated by abandoning plans to include low income family housing on a parcel of land known as Mitchel Field. The complaint further alleged that the General Services Administration and other federal agencies violated federal statutes, regulations, agreements, and executive orders by planning a federal office building for the same site without considering the adequacy of low income housing in the area.

The district court conducted a trial and concluded that abandonment of the housing plan was not illegal because it had neither a discriminatory effect nor a discriminatory motive. It also concluded that GSA had acted in accordance with law in selecting and planning for the federal building. The court therefore dismissed the complaint.

We affirm on the ground that appellants failed to state a claim on which relief can be granted.

I.

Mitchel Field is a parcel of land in the Town of Hempstead, Nassau County, New York, which formerly served as a United States Air Force base. In 1961 after the Air Force had abandoned its operations there the land was declared surplus to the needs of the federal government.

Nassau County purchased approximately 630 acres of the parcel, free of any deed restrictions. The General Services Administration retained 55 acres for federal use. In 1968 the county and the town agreed to create an independent corporation, the Mitchel Field Development Corporation (MFDC), to formulate plans for the utilization of the county's parcel. After some study the corporation recommended a plan which included 1,700 housing units for low, middle, and upper income families.

After release of the plan MFDC held public hearings on its proposals. The hearings revealed substantial public opposition to the plan, especially to the inclusion of low and middle income housing. To calm fears that such housing would become a tax burden on the town MFDC recommended that housing not be constructed at the site until after the development of commercial enterprises which would produce tax revenues.

In the 1970 campaign for County Executive, appellee Caso, who was a candidate for the office, declared his opposition to any housing on the site. Upon his election he dissolved MFDC and transferred its functions to county agencies.

The county has continued to include a variety of educational, commercial, and recreational facilities in its plans for Mitchel Field. It also planned to include 250 units of senior citizen housing. The execution of these plans has been delayed by the refusal of the Department of Housing and Urban Development to fund the project. The regional administrator of HUD testified that the town had developed or was developing several projects for senior citizen housing but none for low income family housing. He testified further that, since senior citizen housing is occupied predominantly by whites and the low income family housing predominantly by minorities, the agency believed that section 808 of the Civil Rights Act of 1968 authorized it not to fund the project unless the town also provided for low income family housing.

Appellants contend that the decision not to construct low income family housing was due primarily to community opposition and that 'community opposition to this form of housing has been racially motivated.'

In 1968 Congress approved construction of a Post Office facility at Mitchel Field. Subsequently GSA revised and expanded the proposed facility so that now it is planned that it will contain offices for about twelve agencies employing about 2,000 persons. Because of the changes GSA revised its proposed prospectus and in January 1973 forwarded it for approval to the Office of Management and Budget. In October OMB returned the revised prospectus for further revisions because certain federal agencies had withdrawn from the project. In January 1973 officials from HUD and GSA met to implement the Memorandum of Understanding between the two agencies. It was agreed that GSA would circulate to various federal agencies a questionnaire to determine facts about the racial and economic composition of the employees of the proposed facility. GSA forwarded the information compiled to HUD. Appellants contend that GSA has not discharged its responsibilities under the Memorandum.

II.

Appellees have no constitutional or statutory duty to provide low income housing. There is no 'constitutional guarantee of access to dwellings of a particular quality.' Lindsey v. Normet, 405 U.S. 56, 74, 92 S.Ct. 862, 874, 31 L.Ed.2d 36 (1972).

Appellants argue, however, that once appellees began to plan low income housing for Mitchel Field they could not, consistent with the Fourteenth Amendment, abandon the plan if to do so would have a disproportionate impact on minority groups, unless appellees could show a 'compelling state interest' for the abandonment. This argument fails upon the authority of Palmer v. Thompson, 403 U.S. 217, 91 S.Ct. 1940, 29 L.Ed.2d 438 (1971). As Justice Black stated, 403 U.S. at 227, 91 S.Ct. at 1946:

'Probably few persons, prior to this case, would have imagined that cities could be forced by five lifetime judges to construct or refurbish swimming pools which they choose not to operate for any reason, sound or unsound.'

As in Palmer, appellees here instituted a plan which, though it might have benefitted minority groups and promoted integration, they were not compelled to undertake in the first place. ²

All of the cases on which appellants rely involve either the refusal of a governmental body to grant benefits equally to all or the governmental obstruction of private projects beneficial to minority groups or to integration. ³ Here appellants seek not to remove governmental obstacles to proposed housing but rather to impose on appellees an affirmative duty to construct housing. This is clearly not required by any provision of the Constitution.

Appellants claim a denial of equal protection because appellees have continued plans to construct low income housing for senior citizens at Mitchel Field. Appellants contend that housing for senior citizens is occupied predominantly by whites and that the inclusion of this type of housing while excluding low income family housing, which would be occupied predominantly by minority persons, is discriminatory.

Of course, it is true that appellees, having decided to construct low income housing for senior citizens at Mitchel Field, would have to operate that housing in a non-discriminatory fashion. But there is no authority holding that once a city or county initiates low income senior citizen housing the Fourteenth Amendment requires it to build a certain amount of low income family housing, too. In Jefferson v. Hackney, 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972), the Court upheld a state scheme which gave higher grants to aged, blind, and disabled persons than to recipients under the Aid to Families with Dependent Children program on the ground that the legislature might rationally conclude that the latter could more easily bear the hardships of inadequate income. 406 U.S. at 549, 92 S.Ct. 1724. The same retionale justifies the housing scheme here.

In Jefferson the Court also analyzed the racial impact of the state scheme. Plaintiffs alleged that the scheme entailed invidious racial discrimination because the category of AFDC recipients, who received 75% Of computed need, contained a higher proportion of blacks and Mexican-Americans than the categories of aged and blind and disabled recipients who received 100% And 95% Of computed need. The Court held that the different ethnic compositions of the groups did not invalidate the system. 406 U.S. at 548-549, 92 S.Ct. 1724.

We cannot conclude that appellees invidiously discriminated by providing low income senior citizen housing at Mitchel Field without also providing low income family housing. 'Whether or not one agrees with this (decision), there is nothing in the Constitution that forbids it.' 406 U.S. at 549, 92 S.Ct. at 1733.

III.

Appellants also raise a rather vague claim under the Fair Housing Act of 1968, 42 U.S.C. 3601-3631 (1970). They do not indicate upon which sections of that act they rely and it is difficult to imagine what sections could support their position.

The Fair Housing Act does not impose any duty upon a governmental body to construct or to 'plan...