Otero v. New York City Housing Authority, 1027

• Citation: 484 F.2d 1122
• Decision Date: 12 September 1973
• Docket Number: 1028,73-1503.,73-1499,No. 1027,1029,Dockets 73-1462,1027
• Parties: Francisco OTERO et al., Plaintiffs-Appellees, v. NEW YORK CITY HOUSING AUTHORITY et al., Defendants-Appellants. Akiva Miller et al., individually and on behalf of all others similarly situated, Intervening-Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

484 F.2d 1122 (1973)

Francisco OTERO et al., Plaintiffs-Appellees, v. NEW YORK CITY HOUSING AUTHORITY et al., Defendants-Appellants Akiva Miller et al., individually and on behalf of all others similarly situated, Intervening-Defendants-Appellants.

Nos. 1027, 1028, 1029, Dockets 73-1462, 73-1499, 73-1503.

United States Court of Appeals, Second Circuit.

Argued June 5, 1973.

Decided September 12, 1973.

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Jeanne Hollingsworth, Atty., New York City (Otto M. Bonaparte, Gerald Davis, Aaron Kohn, Raphael Samuel, New York City, of counsel) for defendant-appellant New York City Housing Authority.

Nancy E. LeBlanc, Atty., New York City (George C. Stewart, Martin A. Hotvet, MFY Legal Services, Inc., New York City, of counsel) for plaintiffs-appellees.

Kalman Finkel, New York City (Leon B. Polsky, Helaine Barnett, Atty., The Legal Aid Society, New York City, of counsel) for intervening-defendants-appellants.

Nathan Lewin, Washington, D. C. (Howard I. Rhine, Harvey Blitz, New York City, Dennis Rapps, National Jewish Commission on Law and Public Affairs (COLPA), Brooklyn, N. Y., of counsel) for intervening-defendants-appellants John Doe, and others.

Before HAYS, MANSFIELD and MULLIGAN, Circuit Judges.

MANSFIELD, Circuit Judge:

Upon this appeal we encounter a type of confrontation that sometimes occurs when a housing authority's use of low cost public housing to promote or maintain racial integration clashes with other demands or interests in the community. Usually the problem arises when an effort is made to introduce a non-white minority into a community that is populated almost entirely by white residents. See N. Y. Times Feb. 17, 1972, 1:1 re: Forest Hills Housing Project, Queens, and Nov. 21, 1972, 1:1 re: Kawaida Towers Housing Project, Newark; Crow v. Brown, 332 F.Supp. 382 (N.D.Ga. 1971); Gautreaux v. Chicago Housing Authority, 296 F.Supp. 907 (N.D.Ill. 1969), affd., 436 F.2d 306 (7th Cir. 1970), cert. denied, 402 U.S. 922, 91 S.Ct. 1378, 28 L.Ed.2d 661 (1971); Banks v. Perk, 341 F.Supp. 1175 (N.D. Ohio 1972). Here, however, the context is one in which the community is presently integrated, with a racial balance that is almost equally divided between white and non-white residents, but the housing authority seeks to stem a steady decline in the percentage of the white population in the community.

The primary issue is whether the New York City Housing Authority ("the Authority" herein), in selecting tenants for a public housing project on the Lower East Side, was required to adhere to its regulation, which would give first priority to present and former occupants of the urban renewal site upon which the project was constructed, despite its contention that the effect of adherence to its regulation would be to create a nonwhite "pocket ghetto" that would operate as a racial "tipping factor" causing white residents to take flight and leading eventually to non-white ghettoization of the community. See Gautreaux v. Chicago Housing Authority, supra; Kaplan, Equal Justice in an Unequal World — The Problem of Special Treatment, 61 N.W.L.Rev. 363, 388-98 (1966). The district court held that, although the Authority was under a constitutional and statutory duty to foster and maintain racial integration, this duty could not as a matter of law be given effect where to do so would be to deprive a non-white minority of low cost public housing that would otherwise be assigned to it under the Authority's regulation. It therefore granted summary judgment in favor of the plaintiffs.

We disagree as to the district court's interpretation of the Authority's duty to integrate. We do not view that duty as a "one-way street" limited to introduction of non-white persons into a predominantly white community. The Authority is obligated to take affirmative steps to promote racial integration even though this may in some instances not operate to the immediate advantage of some non-white persons. It was entitled to show that adherence to its regulation would conflict with this duty. We further find that a genuine dispute exists as to various material facts, including certain facts relied upon by the district court as the basis for its finding that adherence to the regulation would not "result in further ghettoization of the Lower East Side." Accordingly we reverse and remand for further proceedings not inconsistent with this opinion.

I.

The background of this appeal is set forth in the decisions of Judge Frankel granting preliminary relief to the plaintiff class, 344 F.Supp. 737 (S.D.N.Y. 1972), and of Judge Lasker granting permanent relief on plaintiffs' motion for summary judgment after a limited hearing more fully described infra, 354 F.Supp. 941 (S.D.N.Y. 1973). We therefore restrict ourselves to a summary of those facts and proceedings necessary to an understanding of our decision.

Two apartment buildings containing 360 apartments for low income tenants are the immediate subject of dispute in this case. They were designed by and built for the Housing Authority, with the assistance of federal funds, to be part of a larger complex of low and middle income housing to be constructed on the site of the Seward Park Extension Urban Renewal Area which covers approximately 14 square blocks located on the Lower East Side of Manhattan ("Urban Renewal Area" herein). Overall supervision of the Urban Renewal Area is the responsibility of New York City's Housing and Development Administration ("HDA" herein). In addition to the two low income buildings, construction of three buildings comprising 600 middle income units is in the process of being completed.

The City of New York obtained title to the Urban Renewal Area on November 1, 1967. HDA proceeded to relocate the 1,852 families who lived there to other housing, many of them to public housing on the Lower East Side. These families were told at the time of their relocation that they would have a first priority to return to the buildings to be built on the site they were leaving. Although only 55 of these 1,852 families moved from the actual portion of the site on which the Authority's two-building project was constructed, all the families were given the assurance of first priority to return. Again, when the two buildings were nearing completion in January, 1972, and the process of leasing the 360 apartments they contained was commenced, HDA wrote to the class of urban renewal site residents, not just the 55 families who were project site residents,¹ notifying them that "all present² and former residential tenants of Seward Park Extension will be given first priority to return to any housing built within this urban renewal area provided they meet certain qualifications of income, family size, etc.." (Emphasis supplied.) They were also notified that if they were already living in public housing, they would have to apply for a transfer at their present project and notify the field office at the Seward Park Extension project of their intention to transfer.

The response by former site occupants to the invitation to return to the Authority's buildings in the Urban Renewal Area was much larger than anticipated. Experience had indicated that normally only 4% of those relocated from such an area would apply for return to the new housing constructed on it. In this case, however, 27% applied for apartments in the Authority's two buildings. Of the 360 available apartments, 161 were leased to former site occupants (15 to project site residents and the balance of 146 to urban renewal site residents). Three hundred twenty-two more applications from former site occupants were not honored. Instead, the Authority proceeded to lease or commit 171 apartments to the defendants-intervenors, who were not former site occupants.³ Former site occupants who inquired were told that the apartments were filled, or given no response at all. Of these 171 families, 48 were allowed to transfer from other public housing because of the proximity of the Seward Park Extension buildings to an historic synagogue at which they worshipped.

When those former site occupants (mostly non-white) who had applied for but were denied apartments discovered that the 171 apartments had been committed to others (mostly white) in disregard of the Authority's representation that former site occupants would have first priority, they filed a complaint on April 27, 1972, against the Authority and the Department of Housing and Urban Development ("HUD" herein) on behalf of a purported class of non-whites⁴ seeking admission to the Seward Park Extension project, including not only those who were former site occupants but also those in emergency need of housing or in overcrowded public housing elsewhere on the Lower East Side. The complaint, invoking federal question jurisdiction, was based on 42 U.S.C. §§ 1981, 1982, 1983, the Civil Rights Act of 1964, 42 U.S.C. § 2000d, and the Fair Housing Act of 1968, 42 U.S.C. §§ 3604, 3608. It sought to prevent the Authority from renting to persons other than former site occupants until all in that category who were eligible for public housing and for whom there were appropriate apartments had been accommodated. The complaint also sought to prevent the Authority from discriminating against non-white persons in the renting of any apartments which might be available after all former site occupants were housed, and to compel HUD to insure that the Authority would follow its regulation and would cease all discriminatory practices in renting apartments in the Seward Park Extension buildings.

On the day the complaint was filed the late Judge McLean issued a temporary restraining order to preserve the status quo since the buildings were not yet ready for occupancy. Plaintiffs then moved for a preliminary injunction before Judge Frankel who found, 344 F. Supp. 737, that the Authority's regulation GM 1810,⁵ on which plaintiffs based their claim, was applicable and gave plaintiffs a first...