Friendly, Chief Judge, and Lumbard and Oakes, Circuit Judges. Oakes, Circuit Judge (dissenting).
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 "subject 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 "these 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.*fn1 Plaintiffs likewise failed to show that any of the occupants of the buildings had been displaced from former dwellings by ...