Citizens Committee for Faraday Wood v. Lindsay, 17

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Citation507 F.2d 1065
Docket NumberD,No. 17,17
PartiesCITIZENS COMMITTEE FOR FARADAY WOOD et al., Plaintiff-Appellants, v. John V. LINDSAY, Mayor of the City of New York, et al., Defendants-Appellees. ocket 73-2590.
Decision Date28 April 1975

Page 1065

507 F.2d 1065
John V. LINDSAY, Mayor of the City of New York, et al.,
No. 17, Docket 73-2590.
United States Court of Appeals, Second Circuit.
Argued Sept. 24, 1974.
Decided Dec. 5, 1974, Certiorari Denied April 28, 1975, See
95 S.Ct. 1679.

Page 1066

Richard F. Bellman, Tarrytown, N.Y. and Lewis M. Steel, New York City (Eisner, Levy & Steel, New York City, on the brief), for plaintiffs-appellants.

Leonard Koerner, New York City (Adrian P. Burke, Corp. Counsel of the City of New York, L. Kevin Sheridan and Frances Loren, New York City, on the brief), for defendants-appellees.

Before LUMBARD, FEINBERG and OAKES, Circuit Judges.

LUMBARD, Circuit Judge:

Plaintiffs appeal from a judgment dated September 10, 1973, of the Southern District, Robert J. Ward, J., dismissing their complaint after a trial without a jury. 1 D.C., 362 F.Supp. 651. The plaintiffs brought a class action on behalf of all New York City residents who reside in inadequate and deteriorating housing and who would qualify for residence within low-income public housing units. They sought declaratory and injunctive relief against New York City, its mayor, the city's Housing and Development Administration (HDA) and HDA's administrator on the grounds that the city's decision not to proceed with a publicly financed housing project for middle- and low-income families on an eight-acre plot known as Faraday Wood in the North Riverdale section of the Bronx violated the equal protection clause of the Fourteenth Amendment in that it was motivated by racial considerations and had a racially discriminatory effect. In addition, one of the named plaintiffs, the

Page 1067

Association for Middle Income Housing, Inc. (AMIH), the sponsor of the project, asserted that the city's decision to terminate the project breached the city's contractual relationship with AMIH. The district court found that the plaintiffs failed to show that the defendants had purposefully engaged in racial discrimination in violation of the fourteenth amendment and that the city's action did not have an unconstitutionally discriminatory effect. It also dismissed the contract claim. We affirm.

New York City's scatter-site program for selecting public housing sites, first announced in 1966, was designed to promote the building of public housing in the less densely populated areas of the city. Faraday Wood was one of the sites selected under this program. The initial site plans for Faraday Wood included 150 housing units for low-income families and 150 housing units for moderate-income families. However, after public hearings 2 in the fall of 1967 Faraday Wood was designated for development under the Mitchell-Lama Act 3 as a housing development for middle-income families with 20% Of the units reserved for low-income families. At the city's behest AMIH became the sponsor of the project and developed a preliminary plan for the Faraday Wood site, which envisioned one high-rise (twenty-story) building and several low-rise (six-story) buildings. On May 14, 1968, the City Planning Commission indicated that it would consider a formal application for a Mitchell-Lama project on the Faraday Wood site. On May 27th, the HDA advised AMIH that it had given the project preliminary approval subject to submission of acceptable building plans and availability of city funds. Final approval of the project was contingent upon approval of the building plans by the City Planning Commission and the Board of Estimate.

Although there was considerable community opposition to the project, the application was processed in the normal manner until August 1969. On August 8, 1969, however, in the midst of a mayoral primary election, the City Hall Press Office issued a press release that stated that John V. Lindsay, then seeking reelection as mayor of New York City, was opposed to the project because the site was allegedly unsuitable for high-rise construction and because the community was concered about overcrowding in its schools. 4 Soon after the press release was issued the HDA stopped processing plans for the Faraday Wood site. An attempt was made to resurrect the project in a modified form in February 1970. AMIH proceeded to adapt its plans to this new proposal, but ultimately differences between the HDA and AMIH led to the termination of the Faraday Wood project in December 1970.

Judge Ward found that the technical problems advanced by the city as justifications for the project's termination were not substantial and that the termination actually occurred as a political response to community opposition. He concluded, however, that there was no purposeful discrimination on the part of the city because the community opposition was not, in the main, racially motivated. He also found that the termination did not have an unconstitutional racially discriminatory effect because 80% Of the units in the project were reserved for middle-income families and thus the brunt of the project's termination was borne by those families. Unlike the case where low-income families are involved, there is no reason to assume that a disproportionate number of the middle-income families affected would be nonwhite.

Page 1068

After making these findings, Judge Ward applied the rational basis standard of equal protection review and found that the city's action did not violate that standard.


Traditionally courts have used two standards of review when faced with claims that a certain state action violates the equal protection clause. 5 Usually the state action is upheld if it has a rational basis. See, e.g., Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 31 S.Ct. 337, 55 L.Ed. 369 (1911). However, if the state action infringes upon a fundamental right (voting, travel) or is directed at a suspect class (race), the state is required to justify its action by showing a compelling state interest. See, e.g., Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). Since there is clearly no constitutional right of access to a certain quality of housing, Lindsey v. Normet, 405 U.S. 56, 74, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972), cf. Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970), plaintiffs must establish that the city's action impinges on a suspect class in order to qualify for the stricter compelling state interest standard.

While race has long been recognized as a suspect classification, low-income status has not been so recognized. San Antonio School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). Thus, plaintiffs must show that there was an impingement or a disproportionate effect on nonwhites when the city cancelled the Faraday Wood project. The district court concluded that no such effect was shown and we agree. Eighty per cent of the project was reserved for middle-income persons. 6 Since the apartments at Faraday Wood would have rented for at least $80 per room per month, the annual family income limitation for a four-room apartment would have been over $23,000. See N.Y. Private Housing Finance Law 31 (McKinney Supp.1974). The existence of such a high income limitation for the majority of the project's occupants precludes a finding that the project's cancellation had a disproportionate effect on nonwhites. Indeed, the whole rationale for carefully scrutinizinggovernmental

Page 1069

actions that adversely affect traditional public housing projects is that these projects are designed for low-income persons and courts are not blind to the fact that racial minorities are disproportionately represented in the lower- income levels of our society. There is no disproportionate overrepresentation of minorities in middle-income levels. 7 Hence the assumption used in the typical public housing case is not valid here.

Plaintiffs' reliance on our decision in Kennedy Park Homes Assn., Inc. v. City of Lackawanna, 318 F.Supp. 669 (W.D.N.Y.), aff'd, 436 F.2d 108 (2d Cir. 1970), cert. denied. 401 U.S. 1010, 91 S.Ct. 1256, 28 L.Ed.2d 546 (1971) is misplaced. In that case we found that the city of Lackawanna was clearly segregated-- 98.9% Of its nonwhite citizens lived in one of its three wards. The populations of the other two wards were only .2% And .01% Nonwhite. The nonwhite ward was the least desirable residential area of the city because it contained a large steel plant. Moreover, it was a ghetto in the traditional physical sense-- only one bridge connected it to the rest of the city and the city's nonwhites were largely contained in that one limited area of the city. Against this background we held that the city could not, absent a compelling interest, thwart the efforts of a private organization to build housing for low-income families in the white area of the city by, among other things, refusing to accede to a reasonable rezoning request. Other courts have reached similar results. See, e.g., Crow v. Brown, 332 F.Supp. 382 (N.D.Ga.1971), aff'd, 457 F.2d 788 (5th Cir. 1972); Dailey v. City of Lawton, 425 F.2d 1037 (10th Cir. 1970); SASSO v. Union City, 424 F.2d 291 (9th Cir. 1970); Joseph Skillken & Co. v. Toledo, 380 F.Supp. 228 (N.D.0hio, 1974). See also United Farmworkers of Fla. Housing Project, Inc. v. City of Delray Beach, 493 F.2d 799 (5th Cir. 1974). 8

This case is clearly distinguishable from Lackawanna. First, in Lackawanna, and the other cases cited above, the housing projects were designed only for low-income persons. In such cases it was possible to say that nonwhites were disproportionately affected since only low-income persons were involved and since a disproportionate number of nonwhites are low-income persons. That is not true in this case. Second, in the cited cases a city acted to thwart a private developer's attempt to construct housing for low-income persons. The cities involved had no financial or other connection with the project. However, in...

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