Suffolk Housing Services v. Town of Brookhaven

• Decision Date: 09 July 1979
• Citation: 418 N.Y.S.2d 452,69 A.D.2d 242
• Parties: SUFFOLK HOUSING SERVICES et al., Appellants, v. The TOWN OF BROOKHAVEN et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 452

418 N.Y.S.2d 452

69 A.D.2d 242

SUFFOLK HOUSING SERVICES et al., Appellants, v. The TOWN OF BROOKHAVEN et al., Respondents.

Supreme Court, Appellate Division, Second Department.

July 9, 1979.

Richard F. Bellman, Nathaniel Jones, James I. Meyerson, Lawrence Sager, Arthur Eisenberg, New York City (Eisner, Levy, Steel & Bellman, P. C., Richard F. Bellman, New York City, of counsel), for appellants (one brief).

Joseph Mule, Town Atty., Glen Cove (Rathkopf & Rathkopf, Glen Cove, Daren A. Rathkopf, Arden H. Rathkopf, Glen Cove, of counsel), for respondents.

Before HOPKINS, J. P., and SUOZZI, COHALAN, MARGETT and MARTUSCELLO, JJ.

SUOZZI, Justice.

The issue to be decided on this appeal is whether it is appropriate to grant class action certification in a suit that challenges the alleged exclusionary zoning ordinance and practices of a municipal government.

We hold that class action certification is inappropriate in such a lawsuit and that the order of Special Term to that effect should be affirmed.

THE PARTIES AND PLEADINGS

The plaintiffs are comprised of four categories of individuals and three organizations. The individual plaintiffs are low-income residents of Brookhaven who live in overcrowded or otherwise inadequate rented quarters; homeowning Brookhaven taxpayers who allege that the defendants' exclusionary zoning practices deprive them of the opportunity of living in a racially and economically balanced community; a graduate student and his wife and a graduate student at the Stony Brook campus of the State University who allege that they cannot find adequate housing which is within their economic means; and a nonresident woman who was forced to leave Brookhaven because she could not locate adequate housing for herself and her two children and who now lives on public assistance with them in inadequate housing in Riverhead. The organizations are Suffolk Housing Services, a nonprofit agency established to assist low-income and minority citizens to obtain decent housing in Suffolk County; the Brookhaven Housing Coalition, an association of religious and community organizations which have joined together to work for a racially and economically integrated community; and the Patchogue-Brookhaven Branch of the National Association for the Advancement of Colored People which seeks solutions for the lack of adequate housing for low-income and minority citizens in the Town of Brookhaven. The plaintiffs sued individually and on behalf of all others similarly situated. Specifically, the class for whose benefit the action was brought was further broken down in the second amended complaint to four subclasses as follows "(a) all low and moderate-income and minority citizens of the Town of Brookhaven who reside in substandard and inadequate housing in Brookhaven and who are foreclosed from securing decent housing they can afford in the Town because of the zoning practices challenged herein which prevent development of low and moderate-income housing suitable for these plaintiffs; (b) all lower-income students of the State University at Stony Brook who are unable to secure decent housing they can afford near the University because of the Town's illegal and restrictive zoning practices; (c) all low and moderate-income and minority non-residents of Brookhaven compelled to reside in inadequate housing in the larger New York metropolitan area including Long Island because of the defendants' exclusionary zoning practices; and (d) all Brookhaven taxpayers."

In their pleading the plaintiffs argued that despite Brookhaven's population increase of 123% During the decade 1960-1970 the percentage of its black population was reduced from 3.4% To 2.6% And that 97% Of the growth was white; that most of the minority population lives in racial enclaves of deteriorating housing located in North Bellport, Gorden Heights, Patchogue and Center Moriches; that it is town policy to exclude multifamily developments as of right and most of the 60,300 acres of vacant privately owned land is currently zoned for single-family development; that an excessive amount of vacant land is zoned for commercial and industrial uses; that where multifamily housing has been permitted, the town has imposed covenants or obtained the agreement of the developer to limit the number of bedrooms; and that the zoning ordinance requires an additional 1,000 square feet per bedroom where more than one bedroom is proposed in the MF-1 zoning district and an additional 1,000 square feet of site for each additional bedroom in the MF-2 district. According to plaintiffs, all of these restrictions on multifamily housing have had a disproportionately harsh impact on low-income persons, particularly minority groups, who must rent rather than purchase. The plaintiffs further allege that the town has no housing authority, has refused to support privately sponsored Federally subsidized housing and has refused to apply for Federal grants for community development, which policies have precluded town residents and others from obtaining decent housing in the community.

Plaintiffs allege that the town's zoning ordinance and policies violate the United States and the New York State Constitutions, various sections of title 42 of the United States Code and sections 261 and 272-a of the Town Law. The plaintiffs seek (1) a declaration of the invalidity of the zoning ordinance, (2) an order directing defendants to prepare and implement an ordinance and map which would accommodate the housing needs of the plaintiffs and those represented, (3) a permanent injunction enjoining the defendants from engaging in any policies and practices which effectively deny decent and equal housing opportunities "to the plaintiffs and those represented", and (4) all costs incurred in maintaining the action, including attorneys' fees.

DECISION OF SPECIAL TERM

In denying class action certification to the subject action, Special Term relied on the holdings of the Court of Appeals in Matter of Rivera v. Trimarco, 36 N.Y.2d 747, 368 N.Y.S.2d 826, 329 N.E.2d 661 and Matter of Jones v. Berman, 37 N.Y.2d 42, 371 N.Y.S.2d 422, 332 N.E.2d 303, for the proposition that "where governmental operations are involved, class actions are unnecessary since subsequent plaintiffs will be adequately protected by the principles of Stare decisis."

THE LAW

In support of their argument that class action relief should have been granted in the instant action, the plaintiffs rely on the case of Ray v. Marine Midland Grace Trust Co., 35 N.Y.2d 147, 359 N.Y.S.2d 28, 316 N.E.2d 320, which was decided in 1974 under former CPLR 1005 (subd. (a)), which then governed the availability of class actions and provided:

"Where the question is one of a common or general interest of many persons or where the persons who might be made parties are very numerous and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of all."

In upholding class action certification in Ray, the Court of Appeals stated:

"Moreover, the very device of the class action was a flexible remedy of equity, which perforce should be applied progressively as equity still develops (see, generally, for a discussion of the availability of equity to prevent multiplicity of suits, 1 Pomeroy Equity Jurisprudence (5th ed. 1941), §§ 243-244). It would be anomalous to regard the statute, progressive in concept, as intended to restrict the scope of equity or to freeze its development. It has, therefore, always remained for the courts to give meaning to the remedy, based on substantive and developing equitable considerations" (Supra, p. 152, 359 N.Y.S.2d p. 325, 316 N.E.2d p. 323).

"Recently, this court observed that 'the restrictive interpretation in the past of CPLR 1005 and its predecessor statutes no longer has the viability it may once have had (citations omitted)' (Moore v. Metropolitan Life Ins. Co., 33 N.Y.2d 304, at p. 313, 352 N.Y.S.2d 433, 307 N.E.2d 554; see, also, generally, the discussion of class actions in Hall v. Coburn Corp. of Amer., 26 N.Y.2d 396, 401-402, 311 N.Y.S.2d 281, 259 N.E.2d 720, Supra, emphasizing that class actions have been favored in relationships growing out of trusts and noting an expansive development in entertaining class actions; see, contra, Elkind v. Chase Nat. Bank, 259 App.Div. 661, 665, 20 N.Y.S.2d 213, affd. 284 N.Y. 726, 31 N.E.2d 198). The statute, defining class actions in flexible language, it has always been for the courts to elaborate on its scope and limitations" (Supra, p. 156, 359 N.Y.S.2d p. 35, 316 N.E.2d p. 325).

However, and this is most crucial to our analysis herein, the lawsuit in Ray was not directed against a government body or agency, but involved the owner of certain debentures who brought an action alleging breach of trust, gross negligence and conflict of interest against Marine Midland Grace Trust Company, the indenture trustee.

Despite the language in Ray which indicated that the Court of Appeals was adopting a liberal attitude toward class actions, the court made it very clear in several subsequent decisions that no such approach could be utilized when the attempted class action was directed at a governmental body or agency.

Thus, in Matter of Rivera v. Trimarco, 36 N.Y.2d 747, 749, 368 N.Y.S.2d 826, 827, 329 N.E.2d 661, 661 Supra ), the court stated:

"(I)t was an abuse of discretion on the part of the courts below to grant class relief since in the circumstances here presented, governmental operations being involved, On the granting of any relief to the petitioners comparable relief would adequately flow to others similarly situated under principles of stare decisis." (Emphasis supplied.)

In Matter of Jones v. Berman, 37 N.Y.2d 42, 371 N.Y.S.2d 422, 332 N.E.2d 303, Supra ), decided in June, 1975, an attack was made on a State regulation which purportedly conflicted with State and Federal statutes regarding the prerequisites necessary to obtain...