Southside Fair Housing Committee v. City of New York

• Decision Date: 26 March 1991
• Docket Number: D,No. 1251,1251
• Citation: 928 F.2d 1336
• Parties: SOUTHSIDE FAIR HOUSING COMMITTEE; Lucy Rodriguez; Miguel De Los Santos; Israel Rosario; Conrado Diaz; Norma Diaz Tejada; Bolivar Pascual; Carmelo Gonzalez; Franciso Peguero; Luz Baez; Diana Dawson; Blanca Rivera; Irma Montero; Charles L. Mercado; Maritza Andujar; Reyna Gonzalez; Iris Pena; Leroy Beckles; Gustavo Mueses, individually and on behalf of all others similarly situated, Appellants, v. The CITY OF NEW YORK; New York City Department of Housing Preservation and Development; and United Talmudic Academy; Torah V'Yirah Inc., Appellees. ocket 91-7045.
• Court: U.S. Court of Appeals — Second Circuit

Page 1336

928 F.2d 1336

SOUTHSIDE FAIR HOUSING COMMITTEE; Lucy Rodriguez; Miguel De Los Santos; Israel Rosario; Conrado Diaz; Norma Diaz Tejada; Bolivar Pascual; Carmelo Gonzalez; Franciso Peguero; Luz Baez; Diana Dawson; Blanca Rivera; Irma Montero; Charles L. Mercado; Maritza Andujar; Reyna Gonzalez; Iris Pena; Leroy Beckles; Gustavo Mueses individually and on behalf of all others similarly situated Appellants, v. The CITY OF NEW YORK; New York City Department of Housing Preservation and Development; and United Talmudic Academy; Torah V'Yirah Inc., Appellees.

No. 1251, Docket 91-7045.

United States Court of Appeals, Second Circuit.

Argued Feb. 20, 1991.

Decided March 26, 1991.

Lewis M. Steel, New York City (Susan Ritz, Richard F. Bellman, and Steel Bellman & Ritz, New York City, Ruben Franco, Ken Kimerling, and Puerto Rican Legal Defense and Educ. Fund, Inc., New York City, Martin S. Needelman, Foster S. Maer, Mauricio Hernandez, and Brooklyn Legal Services Corp., Brooklyn, N.Y., on the brief) for appellants.

Fay Leoussis, New York City (Victor A. Kovner, Corp. Counsel, Leonard Koerner Thomas Bergdall and Richard Klein on the brief) for municipal appellees.

Jonathan M. Wagner, New York City (Marvin E. Frankel, Robin S. Feingold, and Kramer, Levin, Nessen, Kamin & Frankel, New York City, on the brief) for appellee United Talmudic Academy, Torah V'Yirah, Inc.

Jeremiah S. Gutten, Gail A. Wechsler, and Levy, Gutman, Goldberg & Kaplan, New York City, filed a brief for amici curiae New York Civ. Liberties Union Foundation and Americans for Religious Liberty.

Before FEINBERG, TIMBERS and MINER, Circuit Judges.

TIMBERS, Circuit Judge:

This is an appeal from an order entered November 2, 1990, 750 F.Supp. 575, and from an order and judgment entered November 30, 1990 in the Eastern District of New York, Eugene H. Nickerson, District Judge, 750 F.Supp. 575, denying injunctive relief to appellants and entering final judgment in favor of appellees pursuant to Fed.R.Civ.P. 54(b).

The individual appellants are Latino and African-American citizens who live in the South Williamsburg neighborhood of Brooklyn. The organizational appellant, Southside Fair Housing Committee (Southside), is composed of individuals and groups who reside in that area. Southside's self-described purpose is to "promote a racially and religiously integrated" community.

Appellants commenced this action on January 3, 1990, alleging, inter alia, violations of their first and fourteenth amendment rights in connection with the sale of urban renewal property in Williamsburg to appellee United Talmudic Academy (Academy), the educational arm of the Hasidic Congregation Yetev Lev D'Satmar, Inc. (Satmar Congregation), for development as a boys' yeshiva (Jewish religious school), an apartment complex for yeshiva faculty and a 6,000 seat synagogue. Southside opposes "the establishment of the Area as a white Hasidic enclave" and ultimately seeks "the creation of badly needed racially and religiously integrated housing for lower income persons and particularly Latino and African-American persons."

On appeal, appellants contend that the district court misapplied the Lemon test in deciding the first amendment establishment clause claims; that appellants established that the contested urban renewal land transfers were made in violation of the first amendment establishment clause; and that the actions of the municipal appellees regarding the development of urban renewal land in South Williamsburg violated the fourteenth amendment equal protection clause. For the reasons set forth below, we affirm.

I.

We shall set forth only those facts and prior proceedings believed necessary to an understanding of the issues raised on appeal. In order to fully appreciate appellants' claims, it is necessary to set forth, at some length, the protracted and somewhat complicated process by which the disputed land sales came about.

Many of the background facts are undisputed. In 1967, appellee the City of New York (City), along with the federal and state governments, created Area I, consisting of about nineteen city blocks in Williamsburg, Brooklyn. The City condemned and cleared the deteriorated property. It provided for the development of the area under an Urban Renewal Plan. Before the clearance, Latinos, together with Orthodox and Hasidic Jews, lived in Area I. The first buildings constructed in Area I after the clearance were 2,350 low and moderate income housing units, to replace the 1,400 deteriorated dwellings that existed prior to urban renewal.

Site 4 occupies about one square block of Area I. Prior to 1967, it contained low-rise private housing, some commercial businesses, at least two synagogues, ritual baths, and a yeshiva.

The present population of Area I is mixed. There are four large, high-rise subsidized housing developments, each with occupants of various ethnicities. Two smaller units of market rate housing were purchased almost exclusively by Orthodox and Hasidic Jews. Certain other parcels are under development as condominiums, known as Brooklyn Villas, by the United Jewish Organization (UJO). (Disputes regarding Brooklyn Villas are part of the underlying lawsuit, but the Brooklyn Villas matter has been tentatively settled by the parties and is not involved on the instant appeal.) To the north of Area I is another urban renewal area, Area II, created in 1984. It is occupied chiefly by Latinos.

During the 1970s, the City chose urban renewal sponsors and developers on a "sole source" basis. The staff of appellee New York City Department of Housing Preservation and Development (HPD) consulted with organizations and people in the local community, including members of the local community boards. They sought out persons established in the community who had a "track record" of succeeding in development projects. HPD favored selection of former site occupants for land development. Tentative designations of developers were reviewed by the local Community Board and the City Planning Commission. The final designation was made by the City Board of Estimate (BOE).

Originally, the City considered Site 4 for use as a park. By the early 1970s, however, the HPD started to discuss other so-called "institutional" uses for Site 4. The Academy approached the HPD about constructing on the site a nursing home, a yeshiva, and a medical facility. In July 1977, the HPD proposed subdividing the Site into Sites 4A, 4B, and 4C, and tentatively designated the Academy as the developer of the Sites. The Academy's designation was based, at least in part, on its proven track record of completing similar developments.

Using the same "sole source" process, the City designated a Latino Pentecostal church as the developer of another site within Area I, Site 12. Ultimately, however, the Pentecostal congregation abandoned the designation and located outside Area I.

No other institution has ever submitted written plans for the development of Site 4, nor did testimony at the district court hearing establish that any Latino organization inquired about the Site even though, as the district court found, "[t]he [HPD] did not bar non-Hasidim from making proposals." Although some developers did make inquiries, none did so before the Academy's designation. Southside has never presented any plan to the City for institutional use of land in Williamsburg. Appellants stipulated at trial that they have no funds themselves to purchase Site 4.

In May 1978, HPD submitted the Academy's proposals to the Planning Commission. In August 1978, HPD submitted amendments to the Urban Renewal Plan, changing the designated use of Site 4 from a park to "institutional" use and setting forth the proposed yeshiva, medical facility, and nursing home. The then recently-adopted provision of the City Charter known as the Uniform Land Use Review Procedure (ULURP) required the amendments to go through various reviews and hearings. The Planning Commission first had to certify a proposal. Then the local Community Board, the Planning Commission, and ultimately the BOE had to hold public hearings, review the proposal, and approve or disapprove it. After these steps were taken the BOE, on May 24, 1979, held a hearing and approved the amended Plan.

In the early 1980s, the Academy abandoned its plan for a nursing home and medical facility, apparently because government funding was no longer available. It began to seek permission to have Sites 4A and B developed as a yeshiva and dormitory housing (which later developed into a plan to build faculty housing). It also sought to build a synagogue on Site 4C. During this period, the Academy's letter of credit lapsed. The letter of credit was a condition precedent to its continued designation as developer. The HPD threatened to de-designate the Academy and to bar it from future designations. An internal HPD memo stated that the Academy's actions made "the inference of deliberate misrepresentation of their intentions on this site seem highly probable." HPD never took any action against the Academy however, but continued to work with it until the default was cured. Anthony Gliedman, former Commissioner of HPD, testified that HPD's policy was "to help them through the default ... and to proceed if at all possible. As long as people were trying in good faith, we sought not to de-designate people if at all possible." He testified that he could recall no instance where a community developer was de-designated as a result of a default like the Academy's. Herbert Siegel, director of Brooklyn Planning for HPD, testified that during this period real estate developers and builders had inquired about the possibility of developing Site 4, but were advised that a developer (the Academy) already had been designated.

In 1984, HPD proposed to amend the Urban Renewal Plan to change the approved uses of Sites 4A-C from specific institutional uses to generic institutional uses and to amend ...