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FLETCHER v. ROMNEY

March 1, 1971

Robert FLETCHER et al., Plaintiffs,
v.
George ROMNEY, Secretary of Housing and Urban Development, S. William Green, Regional Administrator for Housing Assistance, Region I, Housing and Urban Development, Thomas A. Burns, Acting Assistant Regional Administrator for Housing Assistance, Region I, Housing and Urban Development, United States Department of Housing and Urban Development, Town of Ramapo, Town of Ramapo Housing Authority, Defendants


Wyatt, District Judge.


The opinion of the court was delivered by: WYATT

WYATT, District Judge.

This is a motion by plaintiffs for a preliminary injunction (Fed. R. Civ. P. 65) restraining the commitment or disbursement of moneys for multiple dwelling units in the Town of Ramapo. After hearing and the taking of evidence, the motion must be denied.

 Plaintiffs are a large number of citizens living in unincorporated areas of the Town of Ramapo, Rockland County, New York.

 Defendants fall into two groupings, federal and state. The federal group consists of several officials of the Department of Housing and Urban Development (42 U.S.C. § 3532; "HUD") and HUD itself. The state group consists of the Town of Ramapo ("the Town") and the Town of Ramapo Housing Authority ("the Authority"). A "town" in New York law is a municipal corporation created by the state legislature as an administrative subdivision of the state. The Town of Ramapo appears to have been created by the legislature in 1829. Revised Statutes, 1829, volume III, pp. 27, 28. By action of local inhabitants, villages may be incorporated under the applicable New York Statutes. Village Law, McKinney's Consol. Laws, c. 64, § 3-300 and following. There are six incorporated villages within the Town of Ramapo. There are "cities" in New York, apparently created by special act of the legislature, but there are no cities in the Town of Ramapo (or in Rockland County). The Town of Ramapo Housing Authority was created by the state legislature, effective March 14, 1967. Public Housing Law, McKinney's Consol. Laws, c. 44-A, § 499.

 The Authority has made contracts to acquire and operate two low-rent housing projects in unincorporated areas of the Town. One such project, which may be called "Airmont", is to be in the easterly part of the Town on a site on South Airmont Road near its intersection with state road 59. The other project, which may be called "Hillcrest", is to be in the westerly part of the Town near the intersection of Hempstead Road and Eckerson Road, north of the Village of Spring Valley.

 Under the United States Housing Act of 1937, as amended (42 U.S.C. § 1401 and following), defendant HUD has contracted to make loans or contributions or both to aid the Airmont and Hillcrest projects. It is difficult to spell out in detail the precise kinds of financial assistance to be made by HUD and it is not necessary to do so for purposes of decision.

 The Town has about 60 square miles, of which some 12 are in the Palisades Interstate Park, which means that these 12 acres will never be inhabited. The unincorporated areas of the Town, and to some extent the incorporated villages, have predominantly one family detached residential dwellings, with considerable open space.

 Plaintiffs are residents of the unincorporated areas who understandably wish to preserve the present character of the land and to prevent the higher population density which the Airmont and Hillcrest projects will to some extent produce. There is no basis, however, on which this court can act to stop the projects.

 The suit was commenced on July 29, 1970. The complaint is not "a short and plain statement of the claim" (Fed. R. Civ. P. 8(a)). From its lengthy averments of one count, it appears to be the position of plaintiffs that construction of the two projects violates "the constitutionally protected rights of the plaintiffs", because:

 
(1) although the Town has agreed with the Authority that there will be "elimination" etc. of "unsafe or insanitary dwelling units", as required by 42 U.S.C. § 1410(a), there "can be no compliance with that portion of the statute";
 
(2) the projects violate the master plan of the Town;
 
(3) a June 1, 1970 amendment to the zoning ordinance of the Town was in violation of the master plan and discriminated against private enterprise;
 
(4) the zoning ordinance amendment dealt with "senior citizen public housing developments" whereas the projects will house 50% who will not be "senior citizens";
 
(5) the projects violate New York Public Housing Law § 150 in that the Town Board did not approve them by a 3/4 vote;
 
(6) there is no "need" for the projects and "need" is required by federal and state law;
 
(7) the applications for special permits are required by the zoning ordinance to be made by the Authority but were not so made; and
 
(8) the "community" was not informed of "the nature of the project".

 The state defendants answered in October 1970; the federal defendants have not answered.

 The action purports to be a class action. Plaintiffs moved for a determination that it may be maintained as a class action (Fed. R. Civ. P. 23(c)(1)). By order with memorandum opinion, filed December 1, 1970, Judge Lasker denied the motion for the want of an adequate showing, without prejudice to renewal.

 The present motion was brought on by order to show cause made by Judge Bryan on February 3, 1971. There was a hearing and evidence was taken on February 12, 1971. On the same day, the following were (on stipulation) by order permitted to intervene as defendants and in opposition to the relief sought by plaintiffs: National Modular Systems, Inc. ("Modular"), contractor for the Airmont project; Fairway Park, Inc. ("Park"), contractor for the Hillcrest project; and Charles Mulligan and others, individually and as a class of "the elderly and the poor", the "potential beneficiaries of housing".

 The factual background appears without any substantial dispute.

 The Town has had for many years a zoning ordinance, adopted by the Town Board and applicable to the unincorporated areas only. Town Law, ...


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