Feliciano v. Romney

• Decision Date: 19 July 1973
• Docket Number: No. 71 Civil 1575.,71 Civil 1575.
• Citation: 363 F. Supp. 656
• Parties: Prudencio T. FELICIANO et al., Plaintiffs, v. George ROMNEY, Secretary of the Department of Housing and Urban Development, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

363 F. Supp. 656

Prudencio T. FELICIANO et al., Plaintiffs, v. George ROMNEY, Secretary of the Department of Housing and Urban Development, et al., Defendants.

No. 71 Civil 1575.

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

July 19, 1973.

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Cora T. Walker, New York City, for plaintiffs.

Whitney North Seymour, Jr., U.S. Atty., S.D., N.Y., New York City, for defendants Romney and Green; Dennis J. Helms, Asst. U. S. Atty., of counsel.

Louis J. Lefkowitz, Atty. Gen., New York City, for defendants Rockefeller and Logue; Stephen P. Seligman, Asst. Atty. Gen., Debevoise, Plimpton, Lyons & Gates, New York City, of counsel.

Norman Redlich, Corp. Counsel, New York City, for defendants Lindsay, Walsh, Williams and Golar; Judah Dick, Asst. Corp. Counsel, of counsel.

EDWARD WEINFELD, District Judge.

In April 1971, the ten named plaintiffs commenced this suit individually and as a class action on behalf of all indigent families residing in the Milbank-Frawley Circle I Urban Renewal Area (hereafter Milbank-Frawley). The complaint alleges in essence that the governments involved—city, state and federal —have failed in their obligations both under the Constitution and federal statutes by not providing area residents with the required relocation, rehabilitation, and site maintenance for present structures, adequate jobs and job training on a nondiscriminatory basis, and that they have actively interfered with an organization representing the community. The instant motion seeks to dismiss the complaint for lack of federal jurisdiction, failure to state a claim, and because primary jurisdiction to decide all issues raised is in the Department of Housing and Urban Development ("HUD"). If these motions fail, defendants seek to deny plaintiffs class action status.¹

The Milbank-Frawley Circle I Urban Renewal Area, located in the center of the Harlem Community, is bounded generally by 125th Street on the north, 110th Street on the south, Park Avenue on the east and Lenox Avenue on the west. The area covers forty square blocks of substantially substandard housing, vacant land and public facilities, and is divided into some forty-five sites, twenty of which the City has already acquired as "early action" sites on which there are 1,800 apartments of slum housing slated to be replaced by 2,640 units of new and rehabilitated housing. The entire area contains some of Harlem's poorest housing stock. This neighborhood is in turn located within the federally financed Harlem-East Harlem Model Cities area (Harlem-East Harlem), a neighborhood three times as large as the Milbank-Frawley area. Numerous agencies and programs, apart from and unrelated to Milbank-Frawley, function within the Harlem-East Harlem Model Cities project. Milbank-Frawley is an urban renewal project, whereas Harlem-East Harlem is a model cities neighborhood project. They are separate and distinct programs. They are to be developed and funded under different statutes with different goals, although intended to advance interrelated national objectives of housing and community needs.

Plaintiffs seek to represent approximately 7,000 families, consisting of 50,000 persons, almost entirely Blacks and Puerto Ricans of low income, who resided in the Milbank-Frawley urban renewal area in August 1970. At that time, when the City acquired the twenty "early action" sites,² approximately 1,700 families lived on those sites; only 800 families remained at the beginning of 1972. The other site residents were relocated into standard housing; many of them into public housing. The plaintiffs resided on early action site 23,³ a single block, when this action was commenced, but have since been relocated. Presently under construction on that site are two thirty-five-story towers and one twelve-story building, known as Frawley Plaza, scheduled for completion in December of this year. It will replace approximately 150 slum apartments and when completed will house 600 families of low and moderate income and will have three community facilities, including two day care facilities and a new home for the North Side Center Development.

All of the defendants save one⁴ are officials of the city, state and federal governments who are involved in the Milbank-Frawley and Harlem-East Harlem Model Cities projects; they are sued both as individuals and in their official capacities.⁵

It is important to a determination of the present motion to note the separate nature of the two undertakings and to sketch the operational framework of the two major federal statutes involved—the Demonstration Cities and Metropolitan Development Act of 1966⁶ ("the Model Cities Act"), and the Housing Act of 1949⁷ ("the Housing Act"), under which urban renewal projects are authorized— and the manner in which they have been implemented in the Milbank-Frawley and Harlem-East Harlem projects.

THE MODEL CITIES ACT

The Model Cities Act was passed to upgrade the total environment of the nation's urban slums and blighted areas, to better the living conditions of its residents and to increase the supply of housing for low and moderate income families not satisfied by existing programs. Its objectives are more comprehensive than those of the programs under other national housing acts. It is designed to concentrate public and private resources in a comprehensive five-year attack on the social, economic and physical problems of slum and blighted neighborhoods. Its broader purpose is to improve educational facilities and programs; to combat disease and ill health; to reduce crime and delinquency; and to enhance recreational and cultural opportunities—as well as to expand housing and job opportunities.⁸ It seeks to accomplish these ends by aiding localities in the planning and implementation of "comprehensive city demonstration programs," the locally developed and scheduled plans providing for a coordinated federal, local and private effort to implement the Act's purpose.⁹ The federal government, through the Secretary of HUD, is authorized to make grants to participating cities to cover 80% of the cost of planning and developing such programs.¹⁰ When a program has been formulated and approved by the locality, and is found to be in conformity with federal standards, the Secretary of HUD is authorized to make supplemental grants to assist the local agency established to administer the comprehensive programs.¹¹ The Act emphasizes local initiative and widespread citizen participation at every stage of the program.¹²

In November 1967, HUD approved New York City's application to participate in the Model Cities program and advanced $283,650 as a one-year planning grant for three neighborhoods, including Harlem-East Harlem. In June 1969, HUD approved the City's Comprehensive City Demonstration Program and entered into a grant agreement which provided the City with $65 million for the first year for the three designated neighborhoods, $12,033,071 of which was set aside for the Harlem-East Harlem Model Cities Neighborhood. In the City's Second Year Program, approved on April 7, 1971, $12,033,000 was reserved for Harlem-East Harlem. The City's Third Year Program was approved and $14,500,000 was reserved for Harlem-East Harlem. The only Model Cities funds which have been specifically used in connection with the Milbank-Frawley urban renewal project was a loan of $200,000 to the Milbank-Frawley Circle Housing Development Fund Co., Inc. to commence rehabilitation of several buildings on sites 5, 11, 18, referred to hereafter.¹³

THE HOUSING ACT

The Housing Act of 1949 expressed the national policy of "the realization as soon as feasible of the goal of a decent home and a suitable living environment for every American family."¹⁴ Congress, from time to time, has sought by various governmental aids to achieve that objective. Urban renewal is one such method and seeks to deal with the problems of slums and urban blight and to create better communities by the planned rehabilitation or redevelopment of deteriorated or deteriorating areas, both residential and nonresidential.¹⁵ It is locally conceived, planned and carried out and involves cooperation among local and state governments, private enterprise, citizen groups and the federal government. An urban renewal program may involve acquisition and clearance of a slum or blighted area, disposition of the land for redevelopment in accordance with planned uses, or rehabilitation of substandard structures by either the local public agency or property owners, accompanied by provision for necessary public improvement; it may involve a combination of such activities. Local public agencies, authorized by state law to undertake urban renewal and receive federal assistance are eligible for renewal assistance. Urban renewal is financed by an arrangement between the local agency and the federal government acting through HUD and involves local contributions, federal advances and loans, and ultimately a federal capital grant, usually two-thirds of the net project cost. To obtain such federal assistance, the locality must initially survey its needs and provide documentation as to its eligibility for urban renewal assistance. Upon the submission of a Survey and Planning Application, the Secretary of HUD may advance funds to the local public agency¹⁶—in the case of New York City the Housing and Development Administration ("HDA") —for additional and intensive surveys to determine the feasibility of urban renewal and for the formulation of surveys and plans for specific projects.¹⁷ The period between approval of the Survey and Planning Application and approval of the ultimate Loan and Grant contract is referred to as the planning stage. During this planning stage, specified activities such as land acquisition and related activities of site clearance and tenant relocation may be carried out even before a Loan and Grant contract is approved if a "Letter of Consent"...