The opinion of the court was delivered by: GURFEIN
The Village of Tarrytown, through the Tarrytown Urban Renewal Agency (TURA), a public benefit corporation, has undertaken an extensive program for the clearance and reconstruction or rehabilitation of slum areas within its territorial limits. The Tarrytown Urban Renewal project is federally and state funded, and provides for the redevelopment of the project area for residential, industrial and commercial uses. The redevelopment is now entering its final stages. Already built are extensive low- and middle-income housing projects, new roadways and utilities and some commercial and industrial structures.
In connection with the Urban Renewal project, a number of family units living in substandard and unhealthy structures had to be relocated. Provision has been made for all such persons either in private relocation housing or in the lowrent or middle-income projects which have been built in the Urban Renewal area. Most families have already been relocated. However, a small number of family units, including the plaintiffs herein, are still to be relocated.
The plaintiffs in this action, Ollie Barnes and her son, Robert Lee Jefferson, are both residents of Tarrytown and live in the premises known as 108 Wildey Street located in the Urban Renewal area. Both are unable to work because of physical disability and must be supported entirely by public assistance under the Aid to Disabled program.
The plaintiffs have resided in their present premises for a period of about one and a half years. Prior thereto they were housed in other premises at 122 Main Street, Tarrytown, New York, which is also located in the Urban Renewal area. In sum total, the plaintiffs have resided in four different apartments provided by defendant Urban Renewal Agency for a period of six years past, some of those apartments eventually being classified as not habitable.
Sometime during February of 1971, Ollie Barnes was advised by an employee of the defendant Agency (TURA) that demolition of the premises at 108 Wildey Street was imminently scheduled and she would be required to move to other housing. The defendant Agency offered to relocate plaintiffs to an apartment located at 80 Franklin Street, Tarrytown, New York.
Thereafter, the plaintiff Ollie Barnes visited the premises at 80 Franklin Street and considered the apartment to be substandard housing which would be unsafe for her and her son. She also alleges that these premises are in violation of provisions of the Multiple Residence Law of the State of New York, and applicable housing codes of the Village of Tarrytown. Subsequent to her visit to the said premises at 80 Franklin Street, Ollie Barnes advised TURA that she and her son could not accept the apartment offered because it was substandard and unsafe and that residence therein would be seriously detrimental to their health.
Nevertheless, the director of the defendant TURA advised the plaintiff that if she did not accept the apartment, she and her son would be evicted from their present dwelling at 108 Wildey Street. Thereafter, allegedly on instructions of the defendant TURA, the electricity and water in plaintiffs' present premises were shut off for a period of four days. Service was restored after a telephone call from the Legal Aid Society to defendant Raymond Brown, Executive Director of TURA. In the early part of September 1971 the plaintiff was once more allegedly threatened with eviction by the defendant TURA unless she accepted the premises at 80 Franklin Street. She was given until September 13, 1971 to comply.
On September 14, 1971, the plaintiff received a letter from defendant Brown advising that eviction proceedings would be commenced against her if she did not move immediately; disclaiming further responsibility for relocating the plaintiffs; and stating that any priority to which plaintiffs would be entitled, insofar as application for public housing was concerned based upon their status as urban renewal residents, was annulled. Mrs. Barnes was also later told she could no longer expect to receive her moving expenses or other financial assistance. Neither HUD nor the members of the agency (TURA) had sanctioned Brown's statements. The plaintiffs continued to decline to move to said premises.
The respondents contend that plaintiffs' present residence is unsafe. It is unheated and in disrepair. Plaintiffs are the only tenants left at 108 Wildey Street and it is impossible to maintain them in a healthy condition.
The complaint in this action for a preliminary and permanent injunction and a declaratory judgment was filed on September 28, 1971. Plaintiffs seek injunctive relief requiring that the defendant Agency be restrained from harassing the plaintiffs to accept substandard housing and be enjoined from proceeding to evict the plaintiffs from their present premises; requiring that all the defendants proceed to implement applicable Federal regulations to provide adequate and safe housing for the plaintiffs and others in their class; to require the effectuation of hearing procedures before any sanctions are imposed for the refusal to accept relocation housing where objections are lodged as to its adequacy. They also seek the convening of a three-judge statutory court in order to pass upon the constitutionality of 42 U.S.C. § 1465(e) and HUD regulation 24 C.F.R. § 41.11(c), which provide that determinations of local agencies concerning eligibility or ineligibility for relocation financial assistance are not subject to review by a Court or other officer; annulling the determination by defendants that plaintiffs had lost their relocation rights; and determining this action to be a valid class action pursuant to Rule 23 of the Civil Procedure.
By order to show cause dated October 1, 1971, the plaintiffs then moved as follows: (1) for an order convening a three-judge court, pursuant to 28 U.S.C. §§ 2282 and 2284, to enjoin preliminarily and permanently the operation and enforcement of 42 U.S.C. § 1465(e); (2) for a preliminary injunction under Rule 65 (F.R. Civ. P.) restraining defendants TURA and Brown (hereafter collectively referred to as the "local defendants") from imposing or threatening any sanction such as removing plaintiffs from TURA's relocation workload or withdrawing from plaintiffs their priorities for admission to public or middleincome housing, on the grounds that plaintiffs had refused relocation housing, without first giving plaintiffs written notice of the reasons for such sanctions and an opportunity to have an evidentiary-type hearing; from determining plaintiffs to be ineligible for relocation financial assistance and from evicting the plaintiffs without first affording them adequate notice and hearing; and from illegally coercing plaintiffs to accept any particular relocation housing; and (3) for a preliminary injunction mandating the United States Department of Housing and Urban Development (hereinafter "HUD"), George Romney, as Secretary of HUD, and S. William Green, as Regional Administrator of HUD (hereafter collectively referred to as the "federal defendants"), to maintain surveillance of the local defendants, to require them to comply with Federal relocation laws and regulations, and to promulgate regulations affording persons displaced by urban renewal activities the rights to notice and an evidentiary-type hearing before any sanctions are imposed on the displacees for refusal to accept offered relocation housing.
Mrs. Barnes, as a person about to be displaced by an Urban Renewal project, has standing to sue in order to contest her relocation. See Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920, 936 (2 Cir. 1968). There the Court of Appeals for the Second Circuit specifically ruled "that judicial review of agency action under section 105(c) of the [Housing] Act [of 1949, 42 U.S.C. 1455(c)]* is available to displacees." (That particular section of the Act, as distinguished from § 1465(e), has no specific provision making agency determination final or barring judicial review.) The Norwalk case involved a major claim of official discrimination against "Negro and Puerto Rican displacees" in the relocation plan of the South Norwalk Renewal project. It concerned a massive constitutional attack on a far-reaching plan which affected the most fundamental of constitutional rights, the right to be free of governmental activity which supports discrimination based on race or color. There was in the Norwalk case, this Circuit held, a clearly justiciable controversy, as well.
The constitutional basis for relief cannot be as firmly grounded when there is no element of unequal treatment of persons, whether for racial or any other reasons. In the case at bar, the papers do not reveal whether Mrs. Barnes is a black or a white person, nor is any issue tendered on that score. The claim is simply that Mrs. Barnes has been assigned temporary relocation in an apartment which is unsuitable for failure to meet the standards of the Act ("decent, safe, and sanitary"), and that ...