Fletcher v. Romney, 70 Civ. 3238.

• Decision Date: 01 March 1971
• Docket Number: No. 70 Civ. 3238.,70 Civ. 3238.
• Parties: Robert FLETCHER et al., Plaintiffs, v. George ROMNEY, Secretary of Housing and Urban Development, S. William Green, Regional Administrator for Housing Assistance, Region I, Housing and Urban Development, Thomas A. Burns, Acting Assistant Regional Administrator for Housing Assistance, Region I, Housing and Urban Development, United States Department of Housing and Urban Development, Town of Ramapo, Town of Ramapo Housing Authority, Defendants.
• Court: U.S. District Court — Southern District of New York

323 F. Supp. 189

Robert FLETCHER et al., Plaintiffs, v. George ROMNEY, Secretary of Housing and Urban Development, S. William Green, Regional Administrator for Housing Assistance, Region I, Housing and Urban Development, Thomas A. Burns, Acting Assistant Regional Administrator for Housing Assistance, Region I, Housing and Urban Development, United States Department of Housing and Urban Development, Town of Ramapo, Town of Ramapo Housing Authority, Defendants.

No. 70 Civ. 3238.

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

March 1, 1971.

Brent, Dranoff, Phillips & Savad, Nanuet, N. Y., for plaintiffs; Raymond G. Kruse, Maurice Phillips, Nanuet, N. Y., of counsel.

Whitney North Seymour, Jr.. U. S. Atty., S.D.N.Y., for the United States; Richard S. Toder, Yale L. Rosenberg, Asst. U. S. Attys., of counsel.

J. Martin Cornell, New City, N. Y., for defendants Town of Ramapo and Town of Ramapo Housing Authority; Myron Mandel, New City, N. Y., of counsel.

Anne L. Glickman, New City, N. Y., for defendants intervenors Mulligan, Fredericks, Johnson and De Groat; Isabel Becker, New City, N. Y., of counsel.

Alexander Teitler, Nanuet, N. Y., for defendant intervenor Fairway Park, Inc.

Granik, Garson, Silverman & Nowicki, New City, N. Y., for defendant intervenor National Modular Systems, Inc.; David Silverman, New City, N. Y., of counsel.

WYATT, District Judge.

This is a motion by plaintiffs for a preliminary injunction (Fed.R.Civ.P. 65) restraining the commitment or disbursement of moneys for multiple dwelling units in the Town of Ramapo. After hearing and the taking of evidence, the motion must be denied.

Plaintiffs are a large number of citizens living in unincorporated areas of the Town of Ramapo, Rockland County, New York.

Defendants fall into two groupings, federal and state. The federal group consists of several officials of the Department of Housing and Urban Development (42 U.S.C. § 3532; "HUD") and HUD itself. The state group consists of the Town of Ramapo ("the Town") and the Town of Ramapo Housing Authority ("the Authority"). A "town" in New York law is a municipal corporation created by the state legislature as an administrative subdivision of the state. The Town of Ramapo appears to have been created by the legislature in 1829. Revised Statutes, 1829, volume III, pp. 27, 28. By action of local inhabitants, villages may be incorporated under the applicable New York Statutes. Village Law, McKinney's Consol. Laws, c. 64, § 3-300 and following. There are six incorporated villages within the Town of Ramapo. There are "cities" in New York, apparently created by special act of the legislature, but there are no cities in the Town of Ramapo (or in Rockland County). The Town of Ramapo Housing Authority was created by the state legislature, effective March 14, 1967. Public Housing Law, McKinney's Consol. Laws, c. 44-A, § 499.

The Authority has made contracts to acquire and operate two low-rent housing projects in unincorporated areas of the Town. One such project, which may be called "Airmont", is to be in the easterly part of the Town on a site on South Airmont Road near its intersection with state road 59. The other project, which may be called "Hillcrest", is to be in the westerly part of the Town near the intersection of Hempstead Road and Eckerson Road, north of the Village of Spring Valley.

Under the United States Housing Act of 1937, as amended (42 U.S.C. § 1401 and following), defendant HUD has contracted to make loans or contributions or both to aid the Airmont and Hillcrest projects. It is difficult to spell out in detail the precise kinds of financial assistance to be made by HUD and it is not necessary to do so for purposes of decision.

The Town has about 60 square miles, of which some 12 are in the Palisades Interstate Park, which means that these 12 acres will never be inhabited. The unincorporated areas of the Town, and to some extent the incorporated villages, have predominantly one family detached residential dwellings, with considerable open space.

Plaintiffs are residents of the unincorporated areas who understandably wish to preserve the present character of the land and to prevent the higher population density which the Airmont and Hillcrest projects will to some extent produce. There is no basis, however, on which this court can act to stop the projects.

The suit was commenced on July 29, 1970. The complaint is not "a short and plain statement of the claim" (Fed.R. Civ.P. 8(a)). From its lengthy averments of one count, it appears to be the position of plaintiffs that construction of the two projects violates "the constitutionally protected rights of the plaintiffs", because:

(1) although the Town has agreed with the Authority that there will be "elimination" etc. of "unsafe or insanitary dwelling units", as required by 42 U.S.C. § 1410(a), there "can be no compliance with that portion of the statute";

(2) the projects violate the master plan of the Town;

(3) a June 1, 1970 amendment to the zoning ordinance of the Town was in violation of the master plan and discriminated against private enterprise;

(4) the zoning ordinance amendment dealt with "senior citizen public housing developments" whereas the projects will house 50% who will not be "senior citizens";

(5) the projects violate New York Public Housing Law § 150 in that the Town Board did not approve them by a ¾ vote;

(6) there is no "need" for the projects and "need" is required by federal and state law;

(7) the applications for special permits are required by the zoning ordinance to be made by the Authority but were not so made; and

(8) the "community" was not informed of "the nature of the project".

The state defendants answered in October 1970; the federal defendants have not answered.

The action purports to be a class action. Plaintiffs moved for a determination that it may be maintained as a class action (Fed.R.Civ.P. 23(c) (1)). By order with memorandum opinion, filed December 1, 1970, Judge Lasker denied the motion for the want of an adequate showing, without prejudice to renewal.

The present motion was brought on by order to show cause made by Judge Bryan on February 3, 1971. There was a hearing and evidence was taken on February 12, 1971. On the same day, the following were (on stipulation) by order permitted to intervene as defendants and in opposition to the relief sought by plaintiffs: National Modular Systems, Inc. ("Modular"), contractor for the Airmont project; Fairway Park, Inc. ("Park"), contractor for the Hillcrest project; and Charles Mulligan and others, individually and as a class of "the elderly and the poor", the "potential beneficiaries of housing".

The factual background appears without any substantial dispute.

The Town has had for many years a zoning ordinance, adopted by the Town Board and applicable to the unincorporated areas only. Town Law, McKinney's Consol. Laws, c. 62, § 261

In early 1966, a change was made in the zoning ordinance which thereafter prohibited apartment buildings.

The Town has a Planning Board. Town Law § 271

In July 1966, it is said that a "master plan" was prepared. Town Law § 272a In evidence is a so-called "development plan" of that date which gives extensive background material but which does not appear to deal with the future; it is probably only part of the "master plan".

Beginning in 1966, consideration was given by town officials to the need of the Town for low-rent housing for elderly people. These have a special problem in that their income, usually pensions or social security payments or the like, are fixed and low and do not increase with rising prices. The Act recognizes this special problem of "elderly families". 42 U.S.C. § 1402(2) "Elderly" is defined in the Act to include those at "the age at which an individual may elect to receive an old age benefit under title II of the Social Security Act". 42 U.S.C. § 1402(2) In the jungle of the Social Security Act, it is hard to find anything simple or specific but presumably the dividing line is 65 and after that one is "elderly".

As already noted, the Authority was created effective March 14, 1967. Public Housing Law § 499

The Authority, contemplating construction of projects for the elderly, arranged for a study to be made by Raymond & May Associates, professional planning consultants. The study was financed by the county, this because it was intended that the projects accept tenants from the whole county and be located near a county complex.

At all times, the town officials contemplated that financial assistance would be obtained from HUD under the Act.

On September 9, 1968, the Town Board authorized an application for financial assistance under the Act for low-rent housing projects for about 300 units. It was found by the Board that in the Town there was "a need for such low-rent housing at rents within the means of low-income families".

The meetings of the Town Board are open to the public and are held on scheduled dates; they can be and often are reported by the news media.

Under date of September 16, 1968, the Town and the Authority made an agreement called "cooperation agreement". This is required and the form prescribed by HUD (or its predecessor).

The Act, among other things, forbids in 42 U.S.C. § 1410(a) any financial assistance for projects unless the local body (the Town) has made an agreement with the public housing agency (the Authority) that

"* * * subsequent to the initiation of the low-rent housing project and within five years after the completion thereof, there has been or will be elimination, as certified by the local governing body, by demolition, condemnation, effective closing, or compulsory repair or improvement, of unsafe or insanitary dwelling units situated in the locality or metropolitan area substantially equal in number to the number of newly constructed dwelling units provided by such projects * * *".

The cooperation agreement in evidence contains such a provision.

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