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May 23, 1972

OTERO et al., Plaintiffs,

Frankel, District Judge.

The opinion of the court was delivered by: FRANKEL

FRANKEL, District Judge.

With decent public housing in woefully short supply, the struggle to allocate it fairly can be agonizing. This case presents a relatively small incident -- but a vital one for the participants -- in that struggle. It appears that defendant City officials, though apparently not from evil motives, have fueled fires of racial competition by lapsing into a rare departure from what all here agree is their usual stance of neutrality in matters of race and creed. Specifically, it appears that the City defendants are, in the peculiar circumstances of this case, effecting a discrimination adverse to non-white applicants for public housing by allowing two unlawful factors to affect the granting of applications:

(1) a refusal, evidently stemming from a legal error, to follow the command of their own regulation (and the official promise) to give first priority to former site residents; and
(2) a preference given to Jews -- and, thus, an obstacle interposed against others -- because the dwellings in question are convenient to an old and historic synagogue.

 The plaintiffs, suing for themselves and a proposed class of "Black and Puerto Rican and other non-white families," charge that they are being discriminatorily denied access to low-cost public housing. They move now for a preliminary injunction and other threshold relief. The substantially undisputed facts, and the reasons upon which this court will award the injunctive relief plaintiffs seek, are as follows:


 The Seward Park Extension Urban Renewal Area is a federally-assisted urban renewal project on the lower east side of Manhattan. Undertaken pursuant to the Housing Act of 1949, as amended, 42 U.S.C. § 1450 et seq., the project has been under the prime responsibility of the New York City Housing and Development Administration (HDA).

 The project involved the usual work of demolishing slum residences and the problem of relocating the people who lived there. The residents displaced in the process were variously relocated, many in public housing accommodations, under federal and local statutory policies contemplating such measures. Thus, the controlling federal statute, 42 U.S.C. § 1455(c)(1), concerned with this problem, requires that there be included in programs of this kind "a feasible method for the temporary relocation of individuals and families displaced from the urban renewal area, and [that] there are or are being provided, in the urban renewal area or in other areas not generally less desirable * * * dwellings * * * available to such displaced individuals and families * * *." *fn1"

 The families thus relocated were in all cases given explicit assurances by HDA officials that they would be entitled as former "site residents" to top priority in public housing to be erected in the urban renewal area. The promise was given to all -- those whose "temporary relocation" was to public housing (whether in the neighborhood or, in many cases, to relatively distant places, including other boroughs of the City), as well as those moved to non-public housing. This promise reflected clear and unambiguous policies of the New York City Housing Authority (later to become the builder and landlord of the dwellings here involved, and a defendant herein) in its closely related and correlative Regulations declaring the priorities for admission to public housing.

 In its codified concern for displaced site residents, defendant Housing Authority was in turn following and reflecting a governing federal policy. Thus, under 42 U.S.C. § 1410(g)(2), a portion of the Housing Act of 1937, as amended, which applies to the project before us, this defendant was required to "adopt and promulgate regulations establishing admission policies which shall give full consideration to its responsibility for the rehousing of displaced families" and of other classes enumerated thereafter. Though they are listed first, "displaced families" are not inevitably required to have a first priority under this federal mandate. On the other hand, it is perfectly consistent for the local housing agency to accord such a first priority, and the New York Authority did so.

 The portion of defendant Housing Authority's Regulations governing "Priority in Selection" is set out in full as an Appendix to this opinion. As will be seen there, the highest priority is given to

"site residents of the site upon which the project was built, and if the project is within an urban renewal area, model city area, or other redevelopment area, site residents of sites acquired to effectuate the plan for such area * * *."

 No exceptions were indicated, here or elsewhere, for "site residents" who might be in public housing at any other site as a matter of "temporary relocation." Other categories -- including people needing "temporary relocation" from other sites, people living in substandard conditions, etc. -- were given lower priorities, so that the inescapable result of the top priority given site residents would have to be some substantial amount of inter-project transfers to fulfill the promise of return to the familiar neighborhood. *fn2"

 In the fullness of time the defendant New York City Housing Authority took over the necessary land within the urban renewal area and erected as a federally-assisted public housing project the two buildings of concern in this case. The buildings, now almost ready for occupancy, contain a total of 360 apartments of various sizes. Arrangements for the receipt and processing of applications began in or around January of this year. In that month, in evident fidelity to the Regulations and explicit promises to former site occupants, the HDA sent a notice addressed "To present and former site tenants of Seward Park Extension." The notice said:

"This is to notify you that all present and former residential tenants of Seward Park Extension will be given first priority to return to any housing built within this urban renewal area provided they meet certain qualifications."

 The "qualifications" then specified related to income, family size and the like. The notice said further:

"Persons who already live in public housing must apply for a transfer at the management office of their present project and advise this field office at 376 Grand Street of their intention."

 The foregoing notice, as its text reflects, went to "all present and former residential tenants," whether residing now in public or private housing. There was no suggestion that the reaffirmation of "first priority" was inapplicable for the many recipients in public housing away from the Seward Park Extension site. Now, however, it is undisputed that this qualification, without notice of any kind to those affected by it, was actually imposed in processing the applications. The fact of this uncommunicated restriction, and the supposed justifications for it, were made known to plaintiffs only after the bringing of this action.

 What happened was this: After receiving the notice recalling their "first priority" and making application, many of the former site residents, including most of the 50 named plaintiffs herein, either received no response or were told upon inquiry that all the apartments were filled. It became evident after a while that large numbers of applicants without the supposed "first priority" were obtaining apartments while people like these plaintiffs were not. It also developed that non-whites (meaning in this case mainly Puerto Ricans, but also some Blacks and Orientals) were being accepted in drastically lower proportions than they comprised in the class of ...

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