Aldena English, and Huntington Township Committee on Human Relations v. Town of Huntington

448 F.2d 319, 1971 U.S. App. LEXIS 8337

• Court: Court of Appeals for the Second Circuit
• Decided: August 26, 1971
• Docket: 1082_1
• Status: Published

Opinions

FRIENDLY, Chief Judge:

The plaintiffs in this action, brought in the District Court for the Eastern District of New York on February 7, 1969, are nine black or Puerto Rican residents of the Town of Huntington, L. I., and the Huntington Township Committee on Human Relations (HTCHR). The individual plaintiffs alleged, among other things, that they had been evicted or were being threatened with eviction from their homes in consequence of an urban renewal project near Huntington Station for which the United States, acting through the Department of Housing and Urban Development (HUD), had made a grant pursuant to 42 U.S.C. § 1452a, and that the Town had not complied with a condition of the contract, imposed pursuant to 42 U.S.C. § 1455(c), requiring relocation of families displaced from the urban renewal area, see Urban Renewal Handbook, RHA 7207.1. They and HTCHR asserted that this was but one phase of a plan of the Town of Huntington to force blacks and Puerto Ricans out of the Town. They also alleged they were bringing the suit as a class action on behalf of “all the black and Puerto Rican residents of the Town who are being and have been deprived of their rights to equal housing opportunities by the actions of the defendants.” The defendants were the Town of Huntington and a number of its officials (hereinafter “the local defendants”) and the Regional Administrator and the Secretary of HUD (hereinafter “the federal defendants”). They filed separate answers, denying most of the allegations of the complaint. At some later date they moved to dismiss.

On July 2, 1970, Judge Travia filed a memorandum opinion and order denying this motion. In the course of the opinion he said that “[sjubject to a showing that the class which plaintiff displacees purport to represent is insufficiently large, * * * this action has been properly brought as a class action. * * * Whether the association plaintiff, HTCHR, may properly represent the interests of minority groups depends on a showing at trial that * * there is a compelling need to grant them standing in order that the constitutional rights of persons not immediately before the court might be vindicated,’ ” quoting from Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920, 937 (2 Cir. 1968).

The instant appeal stems from an application for a preliminary injunction against the local defendants made on November 20, 1970. The nub of the matter was that the Town was about to institute legal proceedings with respect to four dwellings that were being occupied in a manner violating various provisions of the Town’s codes. The district court was asked to enjoin the local defendants from “commencing or prosecuting any legal proceeding to enforce any provision of the Town building, housing or zoning ordinances, civil or criminal, which would result, directly or indirectly, in the eviction of the plaintiffs or any members of their class from their homes, or from taking any other action which would result in such eviction unless and until decent, safe and sanitary housing at rents within their means and in no less desirable locations is provided for them. * * * ”

Both sides filed extensive affidavits and some testimony was taken. On May 13, 1971, Judge Travia denied the motion for a preliminary injunction, “with leave granted to plaintiffs to immediately renew said motion upon telephone notice to the attorneys for the defendants as to any person evicted or threatened with eviction as a result of the legal proceedings being taken by defendant Town of Huntington to enforce the provisions of the Code of the Town of Huntington applicable to zoning, building and housing who is a person displaced from the Town of Huntington urban renewal area in Huntington Station who has been relocated in the first instance in the premises from which he is being evicted or threatened with eviction.” After the district court had denied a motion for an injunction pending appeal, a panel of this court enjoined the local defendants “from taking any action which will result in the eviction of the members of plaintiffs’ class from the four houses against which legal action is contemplated * * * ” pending an expedited appeal.

The district court’s order denying the preliminary injunction displays a disregard of the requirement of F.R.Civ.P. 52(a), that “in granting or refusing interlocutory injunctions the court shall * * * set forth the findings of fact and conclusions of law which constitute the grounds of its action.” However, findings are not a jurisdictional requirement of appeal, Rossiter v. Vogel, 148 F. 2d 292, 293 (2 Cir. 1945), and we can discern enough solid facts from the record to enable us to render a decision.

The four houses which are the subject of the contemplated legal action by the Town are in the Greenlawn section of Huntington, some five miles from the urban renewal area. Greenlawn is zoned primarily for single family use. Each of the four houses, originally constructed for a single family, now contains three separate apartments. The dwellings are occupied by some forty persons, 18 in one house alone, from a minimum of 17 different families. Although the record is not clear on this point, we shall assume in appellants’ favor that all the occupants are blacks or Puerto Ricans. None of the individual plaintiffs reside in these houses, and none of the occupants are persons who were displaced by the urban renewal project.

One of plaintiffs’ affidavits stated: These apartments and rooms are illegal. They are also terribly overcrowded since they house far more people than can live in them consistent with minimum standards of health, privacy, and decency. In the typical case several living units share bathroom and kitchen facilities. Several individuals or even families commonly are squeezed into one room. Many people live in basements.

One of defendants’ affidavits asserted, with abundant supporting detail, that conditions in the four houses represent “violations of the most flagrant type in which the public health, safety and welfare of the other citizens in the community * * * is [sic], in direct jeopardy.” An affidavit of the Assistant Town Attorney stated that there are “totally inadequate fire escape routes, living space and accommodations,” and that “ [t] hese people live in the midst of filth, vermin, pestilence and disease.” He detailed an instance of a basement apartment accessible only by a flight of wooden stairs, which would be the first thing to burn in the event of a fire on the ground floor. The four buildings are owned by four different landlords, deservedly characterized by the Town as “slumlords,” none of whom lives in Huntington. Complaints about conditions in the buildings had been received from other residents of Greenlawn, both black and white.

The parties are in initial disagreement whether plaintiffs were entitled to present the grievances of persons who have not been proven to be displacees of the urban renewal project. Plaintiffs point to the portion of the complaint with respect to representation which we have quoted above. While this allegation was broad enough to encompass black and Puerto Rican occupants of the four houses, it is by no means clear from the excerpt quoted from the district judge’s memorandum opinion that he determined that plaintiffs were entitled to represent so large a class as is now asserted, as distinguished from the displacees; his doubts whether the class was sufficiently large would indicate, if anything, that he found plaintiffs entitled to represent only the displacees. He was not required to find otherwise. While, to be sure, the Advisory Committee had civil rights actions in mind when it wrote F.R.Civ.P. 23(b) (2), that fact alone does not relieve a court of its obligation to determine that the representative parties will “clearly and adequately protect” the interests of the class, F.R.Civ.P. 23(a) (4), and that the claims and defenses of the representatives are typical of the claims or defenses of the class, F.R.Civ.P. 23(a) (3). Clearly the displacees had special claims differing from the black and Puerto Rican inhabitants of Huntington in general. Norwalk CORE does not assist the plaintiffs here since the individual plaintiffs in that case appeared to represent only the class of displacees, of which they formed a part, and the standing of the associations to represent the same class was left to the determination of the district court in accordance with the ability of the individual plaintiffs to perform adequately the representative function. While this alone might suffice for affirmance, we believe the court did not abuse its discretion in denying the preliminary injunction even if we should make the doubtful assumption that plaintiffs in this action were in a position to seek it.

Norwalk CORE does not carry the day for plaintiffs on the merits. The relevant holdings of that case, reversing a dismissal of the complaint on defendants’ motion, were that an allegation that the standard for relocation of families displaced by urban renewal projects was “less sufficiently met in the relocation of Negroes and Puerto Ricans than in the relocation of whites” raised a justiciable claim under the Equal Protection Clause of the 14th Amendment, 395 F.2d at 929-930, and that a claim that the local officials and HUD had failed to comply with the relocation requirements of 42 U.S.C. § 1455(c) was likewise justiciable. It was in light of these holdings that Judge Travia rightly refused to dismiss the instant complaint. But neither Norwalk CORE, Kennedy Park Homes Ass’n v. City of Lackawanna, 436 F.2d 108 (2 Cir. 1970), cert. denied, 401 U.S. 1010, 91 S.Ct. 1256, 28 L.Ed.2d 546 (1971), nor any of the 36 other cases cited by appellants involved the question of how far a municipality is prohibited from nondiscriminatory enforcement of building or zoning codes because the persons affected are members of minority groups who unhappily are more likely than others to inhabit such dwellings and to have greater difficulty in obtaining new housing.

We can put aside at the outset the questions that would arise if any of the occupants of the four buildings were persons who had been displaced by the urban renewal project. All the evidence was that they were not and the terms of the judge’s order indicate that he would very likely have granted relief of some sort if there had been such evidence.¹ Plaintiffs likewise failed to show that any of the occupants of the buildings had been displaced from former dwellings by persons relocated from the renewal project, and we therefore need not consider what the legal consequences would be if they had.

It is elementary that the due process clause does not prevent a city from taking legal steps to require the correction or, failing that, the elimination of housing which constitute such sanitary or fire hazards as to endanger the health or lives of occupants or persons living in the vicinity, Keyes v. Madsen, 86 U.S. App.D.C. 24, 179 F.2d 40, 42 (1949), cert. denied, 339 U.S. 928, 70 S.Ct. 628, 94 L.Ed. 1349 (1950); American Home Fire Assur. Co. of New York v. Mid West Enterprise Co., 189 F.2d 528, 530-531 (10 Cir. 1951); cf. Queensboro Hills Realty Co. v. Saxl, 328 U.S. 80, 66 S.Ct. 850, 90 L.Ed. 1096 (1946). A municipality may do this even though persons who are themselves in danger may prefer to accept the hazards rather than undergo what they regard as worse consequences, at least when there is danger to others as there was here, cf. Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (1905), and under some circumstances even when there is not. Compare Commonwealth v. Howie, 354 Mass. 769, 238 N.E.2d 373, cert. denied, 393 U.S. 999, 89 S.Ct. 485, 21 L.Ed.2d 464 (1968); State ex rel. Colvin v. Lombardi, 241 A.2d 625 (R.I. 1968). Contra, American Motorcycle Ass’n v. Davids, 11 Mich.App. 351, 158 N.W.2d 72 (1969). Of course, in exercising this power, a municipality must act consistently with the equal protection clause. If there were proof that the Town of Huntington was seeking to condemn four dwellings occupied wholly or predominantly by blacks or Puerto Ricans and was doing nothing with regard to dwellings in equal violation of its codes which were occupied wholly or predominantly by whites, the great decision of Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886), would come directly into play. But this is not even alleged. The closest plaintiffs come to any charge of discriminatory enforcement is a general claim that the building and zoning codes have not been vigorously applied. However, this is entirely consistent with a desire on the part of the local defendants not to exacerbate the problems of blacks and Puerto Ricans until better housing becomes available, and to move only against buildings where fire and sanitary hazards had gone far beyond tolerable limits. If the Town had moved more vigorously and extensively plaintiffs would doubtless be complaining even more loudly. The judge could permissibly have concluded that the Town sought to move only against buildings whose condition had gone too far beyond the limit to be tolerated.

We do not think the mere fact that the occupants of these buildings are blacks and Puerto Ricans prevents the Town from taking action it would be constitutionally entitled to take if they were white. It is an unpleasant fact of life that housing like this will be occupied by poor people, and a still more unpleasant one that black and Puerto Rican citizens are over-represented in that group. Yet the Supreme Court has only recently held that the mere fact that a requirement, otherwise proper, may have a greater impact on the poor, does not render it invalid under the Equal Protection Clause, James v. Valtierra, 402 U.S. 137, 91 S.Ct. 1331, 28 L.Ed.2d 678 (1971).

Plaintiffs claim that, however this may be, their case goes further in that the Town, by a long-standing and deliberate policy, has forced an expanding black and Puerto Rican population into the very sort of housing from which it now seeks to oust the occupants of these four dwellings — with the real objective being to get them out of the Town altogether. It may well be that if the Town had engaged in such violations of the Constitution, a court could prohibit otherwise lawful acts until the condition had been rectified. See Swann v. Charlotte Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); United States v. Bethlehem Steel Corp., 446 F.2d 652 (2 Cir. 1971). But these serious allegations, which were made in the complaint that began this action, are vigorously denied. The defendants, including the federal defendants sought to be injected into the case, claim that the Town has fully complied with the relocation provisions of the HUD grant. We do not think the case made on this application for a temporary injunction on a matter collateral to the issue framed by the complaint was such as to require the judge, in effect, to hear all the evidence of conditions alleged to have lasted over years that will doubtless consume many days of trial. Contested allegations, no matter how sincerely made, are not the equivalent of proof; what this case, already pending for two and a half years, badly needs is the resolution of factual issues that only a trial can afford. In the absence of proof of the violations of the Constitution and laws of the United States which plaintiffs have charged, and in light of the Town’s assurance that the facilities of the Department of Social Services of the Town of Huntington and Suffolk County will be available to furnish relocation assistance to occupants of the four dwellings who will have to vacate pending reconstruction or as a result of the razing of the four dwellings, the judge was not required to prohibit the Town from what would otherwise be a lawful exercise of the police power confided to it by the State of New York.

Affirmed.

1 . This might well have taken the form of a direction for relocation of such persons rather than an outright injunction.