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August 20, 1973

John V. LINDSAY, Mayor of the City of New York, et al., Defendants

Robert J. Ward, District Judge.

The opinion of the court was delivered by: WARD

ROBERT J. WARD, District Judge.

This is an action seeking declaratory and injunctive relief and damages against the City of New York; its Mayor, John V. Lindsay; the Housing and Development Administration of the City of New York, an agency of the City ("HDA"); and Albert B. Walsh, the Administrator of that agency. The plaintiffs allege that these defendants refused to process an application for financing the construction of a housing project known as Faraday Wood under the City's Mitchell-Lama program, Article 2 of the New York Private Housing Finance Law (McKinney's Consol. Laws, c. 44B, Supp. 1972), because of racial discrimination in violation of the Fourteenth Amendment to the Constitution of the United States; the Civil Rights Acts, 42 U.S.C. §§ 1981, 1982, 1983 and 1985; and the Fair Housing Law, Title VIII of the Civil Rights Act of 1968, 42 U.S.C. § 3601 et seq.

 The plaintiffs are a civic group which supports the project, the sponsor of the project, 8 low-income minority residents of New York City, and a resident of the Riverdale section of the Bronx, where the project was proposed to be built, who supports the project. Plaintiffs seek to bring this action as a class action.

 This Court previously determined that it had jurisdiction of the claims of the sponsor, The Association for Middle Income Housing, Inc. ("AMIH"), under 28 U.S.C. § 1331 and that it had jurisdiction of the claims of the other plaintiffs under 28 U.S.C. § 1343. Memorandum Decision of July 22, 1971. This decision must be modified in light of City of Kenosha v. Bruno, 412 U.S. 507, 93 S. Ct. 2222, 37 L. Ed. 2d 109 (1973). Under the holding of that case, the Court has jurisdiction under 28 U.S.C. § 1343 only of the claims against the individual defendants, John V. Lindsay and Albert B. Walsh. Nevertheless, the Court concludes that it has jurisdiction of the action on behalf of all plaintiffs against all defendants including the City and HDA under the Fair Housing Law, Title VIII of the Civil Rights Act of 1968, 42 U.S.C. § 3601 et seq. and that claims asserted pursuant thereto are not time-barred. Kennedy Park Homes Ass'n v. City of Lackawanna, 318 F. Supp. 669 (W.D.N.Y.), aff'd, 436 F.2d 108 (2d Cir. 1970), cert. denied, 401 U.S. 1010, 91 S. Ct. 1256, 28 L. Ed. 2d 546 (1971); see also, Sisters of Providence of St. Mary of the Woods v. City of Evanston, 335 F. Supp. 396 (N.D. Ill. 1971).

 This action is permitted to proceed as a class action on behalf of all residents of the City of New York residing in inadequate and deteriorating housing units who would qualify for residence in low-income housing units as provided for within the terms of Sections 11, 11-a and 31 of the New York Private Housing Finance Law (McKinney Supp. 1972).

 In this case, it is necessary for the Court to determine why the project known as Faraday Wood faltered and ultimately died. To do this the Court has been required to ascertain the motivations of the defendants which led to the ultimate demise of this project. Questions of motive are necessarily difficult to determine. Where, as here, the motive alleged is racial discrimination, which generally is exhibited -- if at all -- in cloaked and subtle forms, the task is all the harder. See, Palmer v. Thompson, 403 U.S. 217, 225, 91 S. Ct. 1940, 29 L. Ed. 2d 438 (1971). The job has been made more difficult still because the Court did not have the opportunity to observe any witnesses. *fn1" Nevertheless, the Court, upon the record made at trial, has determined that sufficient evidence has not been presented to prove that the defendants purposefully engaged in racial discrimination or that their actions resulted in a constitutionally invalid discriminatory effect.

 On March 16, 1966, the Mayor announced the so-called scatter-site program for the selection of sites for new public housing. Under the guidelines announced, new construction was to be "concentrated on vacant land and in under-utilized areas in outlying sections of New York City." One of the purposes of this program was to "open housing opportunities in sound, predominantly white, middle-income neighborhoods for those now confined to the City's ghettos." The site known as Faraday Wood, which is located in the area of the City known as North Riverdale, was not among those which the Mayor initially asked the City Planning Commission ("CPC") to consider for the scatter-site program. On July 11, 1967, the New York City Housing Authority submitted a plan for a public housing project on the Faraday Wood site to the CPC and apparently to the Board of Estimate. The proposal called for a federally-aided low-rent public housing project to be developed on a portion of the site and a city-aided or federally-aided moderate income project to be developed on the remainder of the site. The proposed lowrent public housing was to consist of one 15-story, 150 dwelling unit building to house 65% families and 35% elderly. The middle-income portion was also to contain 150 units. It was also proposed that the entire project be developed by the sponsor of the middle-income housing with the Housing Authority leasing or purchasing 150 units for low-income tenants.

 On July 28, 1967, AMIH submitted an "Applicant's Certificate of Interest" to become the sponsor of the proposed project and a Preliminary Site Information form, to the Housing and Development Board, predecessor agency to the HDA, in response to discussions with members of the CPC requesting AMIH to undertake this project. AMIH's proposal called for a 465 dwelling unit project to be built on 8.6 acres.

 In August and September, 1967, the CPC held two open hearings on the proposed scatter-site program including designation of the Faraday Wood parcel as one of the sites. After these hearings, Faraday Wood was designated for development of a Mitchell-Lama project; the proposal for one-half of the project to be leased or sold to the Housing Authority for low-income units was eliminated following these hearings. In line with the City's policy regarding middle-income projects, twenty percent of the units were to be reserved for low-income tenants. Following its filing of the application and site approval form, AMIH developed a concept -- or general idea as to the nature -- of the project. This concept was submitted to the local Community Planning Board which recommended to the CPC that the site was appropriate for a middle-income project with a small percentage of low-income units provided that remedial action would be taken to solve the problems of overcrowded schools and inadequate transportation, parking, police and fire protection, and recreational facilities. On May 14, 1968, the Chairman of the CPC, Donald H. Elliott, wrote Jason R. Nathan, the then Administrator of HDA, that the CPC had agreed to consider a formal application for a Mitchell-Lama project on the Faraday Wood site. On May 27, 1968, HDA advised AMIH that it had given preliminary site approval for a Mitchell-Lama development subject to submission of acceptable building plans, proof of economic feasibility and availability of City funds. AMIH entered into a Sponsor's Agreement with HDA on July 10, 1968, and HDA approved AMIH as the project sponsor for a Mitchell-Lama development at Faraday Wood.

 On April 3, 1969, AMIH's architect, the firm of Richard Kaplan, submitted a set of preliminary drawings to HDA showing the proposed buildings in greater detail. HDA reviewed these drawings and met with AMIH's architects to discuss the design as it was being revised. AMIH's architects submitted a second series of drawings to HDA in late July or early August, 1969. These designs were for an "all-family" project, but ten percent of the units were intended for the elderly. The plans called for several low rise buildings of up to six stories and one twenty-story tower containing a total of under 400 dwelling units, a reduction from their original proposal. Until this time, the processing of AMIH's application was in accord with usual procedures. AMIH and the other plaintiffs do not charge any irregularities or failure to process the application for the Faraday Wood development before August 4, 1969.

 The evidence indicates that processing of AMIH's application by HDA came to a virtual halt soon after submission of this second set of drawings. No discussion about this second set of drawings occurred between HDA and AMIH's architects as was the customary practice. No action was again taken by HDA on the Faraday Wood project until about January, 1970. The events which occurred during this hiatus strongly indicate that part of the reason for its occurrence was a political response to community opposition to the project by some officials of the City Administration during the heat of an election campaign. On August 8, 1969, the City Hall Press Office issued a press release in which Mayor Lindsay was quoted as stating that he was opposed to the Faraday Wood project on the grounds that the site was unsuitable for high-rise construction and that the community was concerned about overcrowding in the schools. This release written by Robert Rosenberg, an Assistant Administrator of HDA who was also Chairman of the Mayor's Urban Action Task Force for the Northwest Bronx, was issued without the Mayor's authorization or knowledge. It does, however, reveal that his administration would thereafter oppose the project in response to opposition in the community. While it is clear that HDA, as part of the Lindsay administration, was also reacting to the sentiments of the community, there is evidence that it was also -- albeit to a lesser degree -- concerned about problems inherent in the nature of the proposed design. Furthermore, a political response to community opposition is not automatically evidence of racial discrimination by public officials in response to racially based opposition in the community. On the record in this case, the plaintiffs have not established that racial motives underlay the community opposition to this project; therefore, to the extent that the inaction of HDA was a response to community concerns, no racially discriminatory motives can be imputed to it. That there was some racial opposition does not mean that opposition on other grounds was not the overriding community sentiment or the nature of the opposition to which the administration responded.

 The community involved was concerned with rapid population growth and subsequent overtaxing of community facilities. The community was also concerned about the expanding number of high-rise apartment buildings, which they viewed as detracting from their environment. When given the opportunity, the community gave general expression to these concerns. See New York City Planning Commission, Plan for New York City 1969 -- A Proposal, Vol. 2 The Bronx, 146-47; Manousoff Associates for New York City Planning Commission, New York City Master Plan -- Riverdale Study Phase I. The Manousoff report was published early in 1968 and was based on a study undertaken from June 1 to September 15, 1967. Concurrently with the developments involving Faraday Wood, the community was seeking a rezoning of the entire North Riverdale area to eliminate all future high-density development. It appears to the Court that the inference may well be drawn that the community made the Faraday Wood project the focus of opposition to further high-density development because the public hearings required by this publicly-aided project gave them an opportunity to voice their opposition -- an opportunity which was absent where privately-funded projects not requiring zoning variances were involved. This conclusion is buttressed in the Court's view by evidence that in the 80% of middle-income apartments which were not to be reserved for low-income residents, rents might conceivably have been as much as $80 per room per month. Under the formula governing income eligibility for Mitchell-Lama housing, it is clear that people who by no stretch of the imagination could be classified as low-income would be eligible for 70-80% of the apartments. *fn2"

 Beginning in November, 1969, in response to a letter from plaintiff Ann Montero supporting the reactivation of the Faraday Wood project, discussion took place within the administration regarding such reactivation. Mr. Rosenberg opposed reviving the project on the grounds that the Mayor had given his commitment in opposition to the project and could not reverse his position and that there was still community opposition.

 The reactivation of the Faraday Wood project in modified form was undertaken following defendant Albert Walsh's becoming Administrator of HDA in January, 1970. In February, 1970, Walsh met with the president of AMIH and suggested that the project be changed from all-family to 50 percent family and 50 percent elderly housing. Although other factors were again involved in this recommendation, the predominant reason for Walsh's suggesting this change was to make the project more acceptable to the community. But again it is necessary to state that there is no clear evidence in the record before the Court to link this admitted community opposition to racism. There is equally compelling ...

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