Warth v. Seldin, No. 139

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtMOORE, HAYS and TIMBERS, Circuit
Citation495 F.2d 1187
PartiesRobert WARTH, Individually and on behalf of all other persons similarly situated, et al., Plaintiffs-Appellants. v. Ira SELDIN, Chairman, et al., Defendants-Appellees.
Decision Date18 April 1974
Docket Number73-1749.,144,No. 139,Dockets 73-1748

495 F.2d 1187 (1974)

Robert WARTH, Individually and on behalf of all other persons similarly situated, et al., Plaintiffs-Appellants.
v.
Ira SELDIN, Chairman, et al., Defendants-Appellees.

Nos. 139, 144, Dockets 73-1748, 73-1749.

United States Court of Appeals, Second Circuit.

Argued November 27, 1973.

Decided April 18, 1974.


495 F.2d 1188

Emmelyn Logan-Baldwin, Rochester, N. Y. (Frank A. Aloi, Robinson, Williams, Robinson & Angeloff, Rochester, N. Y., on the brief), for plaintiffs-appellants Warth, Reichert, Vinkey, Harris, Ortiz, Broadnax, Reyes, Sinkler, and Metro-Act of Rochester, Inc.

Michael Nelson, Rochester, N. Y., and Richard Wesley, on the brief, for plaintiff-appellant Housing Council in the Monroe County Area, Inc.

Sanford J. Liebschutz, Rochester, N. Y. (Liebschutz, Rosenbloom & Samloff, Rochester, N. Y., on the brief), for intervenor-appellant Rochester Homebuilders Ass'n, Inc.

Douglas S. Gates, Rochester, N. Y. (Harris, Beach & Wilcox, Rochester, N. Y., on the brief), for defendants-appellees.

The National Committee Against Discrimination in Housing (Norman C. Amaker and Mollie W. Neal, Washington, D. C., on the brief), filed a brief as amicus curiae urging reversal.

Before MOORE, HAYS and TIMBERS, Circuit Judges.

HAYS, Circuit Judge:

Appellants brought this suit as a class action against the appellees, the Town of

495 F.2d 1189
Penfield, New York, and the members of as Town Board, Town Planning Board, and Zoning Board. The complaint alleged that the town's zoning laws, on their face and as applied, violated appellants' rights under the first, ninth, and fourteenth amendments to the Constitution of the United States and 42 U.S.C. §§ 1981, 1982, and 1983. The district court dismissed the complaint for lack of standing and failure to state a claim upon which relief could be granted and denied appellants class action status. The court also denied a motion by the Rochester Homebuilders Association, Inc., to intervene as a plaintiff

We affirm on the ground that appellants lack standing.

I. FACTS

Accepting appellants' factual allegations as true, as we must, we find the following facts relevant. The Town of Penfield is a suburb of Rochester. Its zoning laws are fairly typical for a suburban community. The town has zoned 90% of all vacant land for single family detached housing. The ordinance also fixes minimum lot sizes, floor areas, lot widths, and setbacks for dwellings. Where the ordinance does permit multi-family dwellings, it limits density to twelve units per acre, limits the portion of the lot which may be occupied by the dwelling, and requires a minimum number of garage and unenclosed parking facilities for each unit.

The ordinance provides for Planned Unit Developments (PUD), which may contain a mixture of single-family and multi-family units. A substantial part of each PUD must be reserved for single-family dwellings with specified minimum acreages.

Appellants' complaint goes beyond the face of the town's zoning laws and further alleges certain affirmative acts which it claims deprived them of their rights. These acts involve various proposals by builders for multi-family housing in Penfield. One Joseph Audino on several occasions proposed a PUD for a site known as Beacon Hills. The Town Planning Board first denied the proposal, then accepted it with certain modifications which reduced the permissible density. The Town Board first accepted the proposal with the modifications, then rescinded the necessary rezoning. The town apparently claims that sewer facilities in the district are inadequate to serve the proposed development. The builder now plans to pump sewage to another district. Neither the builder nor anyone associated with him is a plaintiff in this action.

Penfield Better Homes, Inc., has proposed a project known as Highland Circle for "low moderate income housing." In September 1969 the Planning Board denied the proposal on a number of grounds. The corporation is not a plaintiff nor associated with any plaintiff in this action.1

A proposal by O'Brien Homes, Inc., to build apartment housing was originally denied. The Planning Board has yet to act on a modification of the same proposal.

Appellants also refer to several other proposals for apartment housing which have met with little success. They claim that only two proposals for PUDs have passed the first stage of the necessary three stages of approval. In no case do appellants allege any involvement in these proposals.

Appellants argue that the Penfield zoning laws, on their face and as applied, violate their rights in a number of ways. First, appellant taxpayers of Rochester claim that because of Penfield's zoning laws the City of Rochester must assume more than its "fair share"

495 F.2d 1190
of low income, tax abated housing property, thereby shrinking Rochester's tax base and forcing property owners in Rochester to pay higher property taxes.2 Second, appellants claim that Penfield's zoning practices unconstitutionally bar low and middle income persons, especially members of racial minority groups, from residing in Penfield.3 Intervenor-appellant Rochester Homebuilders Association, Inc. claims that the town's zoning practices have deprived its members of the opportunity to construct housing for low and middle income persons, thereby harming the association's members financially

Appellants seek a declaratory judgment that Penfield's zoning practices are illegal, an injunction against enforcing the zoning ordinance, an injunction compelling enactment of an acceptable ordinance, and monetary damages.

II. STANDING

Although the Supreme Court has discussed standing to sue on many occasions, certain aspects of the doctrine continue to present difficulties. Moreover, during the last few years the Court has revolutionized the law of standing. In Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970), and Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970), the Court announced a two-pronged test of standing : the plaintiff must allege an "injury in fact," and must seek to protect an interest "arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." Data Processing, supra, 397 U.S. at 152-153, 90 S.Ct. at 830. However, the Court has not explained what constitutes an "injury in fact." See Dugan, Standing to Sue : A Commentary on Injury in Fact, 22 Case W.Res.L.Rev. 256, 258 (1971). Moreover, reliance on precedents is especially hazardous in this area. As the Court remarked in Data Processing, "generalizations about standing to sue are largely worthless as such." 397 U.S. at 151, 90 S.Ct. at 829. The Court has laid down some rules in certain areas, such as taxpayer, competitor, and environmental suits. Except for appellants who claim standing as taxpayers, however, these rules are not very helpful here.4

Standing is an element of justiciability, "surrounded by the same complexities and vagaries that inhere in justiciability." Flast v. Cohen, 392 U.S. 83, 98, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947 (1968).

The gist of the question of standing is whether the plaintiff has "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). See also O'Shea v. Littleton, 414 U.S. 488, 94 S. Ct. 669, 675, 38 L.Ed.2d 674 (1974) ; Flast v. Cohen, supra, 392 U.S. at 99, 88 S.Ct. 1942.

A. Appellant Taxpayers of Rochester

Appellants Vinkey, Reichert, Warth, and Harris own land within the city of Rochester. They claim that the Penfield zoning laws exclude low and moderate income persons, thereby requiring Rochester to permit more than its "fair share" of tax-abated housing projects. This shrinks the tax base of Rochester,

495 F.2d 1191
which then must impose higher tax rates on appellants and others similarly situated in order to meet its fiscal needs

As a general rule the interests of a federal taxpayer in federal expenditures are too "minute and indeterminable . . . fluctuating and uncertain" to provide a basis for standing. Frothingham v. Mellon, 262 U.S. 447, 487, 43 S.Ct. 597, 601, 67 L.Ed. 1078 (1923). The rule applies equally to state taxpayer suits in federal courts. Doremus v. Board of Education, 342 U. S. 429, 72 S.Ct. 394, 96 L.Ed. 475 (1952). In Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942 (1968), the Court created an exception to the rule : a federal taxpayer may contest measures alleged to violate "specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power." Id. at 103, 88 S.Ct. at 1954.

Appellants do not allege a violation of a "specific constitutional limitation" on taxing and spending. Indeed, they do not even allege that Rochester's taxes or expenditures are unconstitutional. They allege only that certain acts of appellees which do not involve taxing or spending have operated to raise their taxes.

In Flast the Court stated that its decision was "consistent with the limitation upon state-taxpayer standing in federal courts in Doremus . . . ." 392 U.S. at 102, 88 S.Ct. at 1954. Certainly if taxpayer standing was not justified in Doremus because plaintiff's interest was too remote, standing cannot be found here, where there is such an attenuated line of causation between the allegedly illegal acts (Penfield's zoning laws) and the injury of which appellants complain (higher property taxes). A great variety of actions taken by a state or a municipality might arguably affect the rate of taxation in other states or towns. This hardly gives taxpayers in the affected states or towns standing to contest all such actions.5

B. Individual Appellants Claiming Standing on...

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9 practice notes
  • Warth v. Seldin, No. 73
    • United States
    • United States Supreme Court
    • 25 Junio 1975
    ...averred no basis for inferring that an earlier controversy between it and respondents remained a live, concrete dispute. Pp. 516-517. 495 F.2d 1187, affirmed. Emmelyn Logan-Baldwin, Rochester, N.Y., for petitioners. James M. Hartman, Rochester, N.Y., for respondents. Page 493 Mr. Justice PO......
  • Evans v. Lynn, No. 157
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 4 Junio 1976
    ...policies, we would have to answer in the negative, if for no other reason than that a recent decision of this court, Warth v. Seldin, 495 F.2d 1187 (2d Cir.), cert. granted, 419 U.S. 823, 95 S.Ct. 40, 42 L.Ed.2d 47 (1974), would require us to do so. 11 In this respect, appellants have no co......
  • Jaimes v. Toledo Metropolitan Housing Authority, Nos. 83-3443
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 24 Junio 1985
    ...of the opportunity to construct housing for low and middle income persons, thus harming the association's members...." Warth v. Seldin, 495 F.2d 1187, 1190 (2d Cir.1974). Other plaintiffs asserted that several proposals for low income housing had been rejected by defendants. Low income blac......
  • League of Women Voters of Nassau County v. Nassau County Bd. of Sup'rs, No. 326
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 22 Mayo 1984
    ...standing under Sec. 1983 because the asserted injury was to the right of association, an avenue left open in Aguayo ); Warth v.Seldin, 495 F.2d 1187, 1194 (2d Cir.1974); aff'd on other grounds, 422 U.S. 490, 516-17, 95 S.Ct. 2197, 2214, 45 L.Ed.2d 343 (1975) (In denying standing to a housin......
  • Request a trial to view additional results
8 cases
  • Warth v. Seldin, No. 73
    • United States
    • United States Supreme Court
    • 25 Junio 1975
    ...averred no basis for inferring that an earlier controversy between it and respondents remained a live, concrete dispute. Pp. 516-517. 495 F.2d 1187, affirmed. Emmelyn Logan-Baldwin, Rochester, N.Y., for petitioners. James M. Hartman, Rochester, N.Y., for respondents. Page 493 Mr. Justice PO......
  • Evans v. Lynn, No. 157
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 4 Junio 1976
    ...policies, we would have to answer in the negative, if for no other reason than that a recent decision of this court, Warth v. Seldin, 495 F.2d 1187 (2d Cir.), cert. granted, 419 U.S. 823, 95 S.Ct. 40, 42 L.Ed.2d 47 (1974), would require us to do so. 11 In this respect, appellants have no co......
  • Jaimes v. Toledo Metropolitan Housing Authority, Nos. 83-3443
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 24 Junio 1985
    ...of the opportunity to construct housing for low and middle income persons, thus harming the association's members...." Warth v. Seldin, 495 F.2d 1187, 1190 (2d Cir.1974). Other plaintiffs asserted that several proposals for low income housing had been rejected by defendants. Low income blac......
  • League of Women Voters of Nassau County v. Nassau County Bd. of Sup'rs, No. 326
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 22 Mayo 1984
    ...standing under Sec. 1983 because the asserted injury was to the right of association, an avenue left open in Aguayo ); Warth v.Seldin, 495 F.2d 1187, 1194 (2d Cir.1974); aff'd on other grounds, 422 U.S. 490, 516-17, 95 S.Ct. 2197, 2214, 45 L.Ed.2d 343 (1975) (In denying standing to a housin......
  • Request a trial to view additional results

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