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KING v. HARRIS

February 8, 1979

Evelyn M. KING, Individually and as President of the Staten Island Branch of the National Association for the Advancement of Colored People, Donald Asinobi, Individually and as Treasurer of the Clifton Home Owners Association, Cynthia Mailman, Individually and as Representative of the Stapleton Civic Association, Inc., Louis P. Wein, Individually and as Chairman of the Clifton Homeowners Association, Amelia Hall, Individually and as Representative of the Clifton Homeowners Association, Helen R. Pose, Individually and as President of the Stapleton Civic Association, Inc., Plaintiffs,
v.
Patricia HARRIS, Secretary of the United States Department of Housing and Urban Development, Faymor Development Co., Inc., a Corporation and as General Partner of Tenhill-Faymor Housing Associates, a partnership, Defendants



The opinion of the court was delivered by: COSTANTINO

MEMORANDUM OF DECISION AND ORDER

This is an action brought by neighborhood residents and community organizations seeking to preserve a racially integrated neighborhood on Staten Island. In this case, a racially mixed and balanced community is attempting to prevent not only the undue concentration and segregation of minorities in the area, but also the ultimate destruction of the community. See Otero v. New York City Housing Auth., 484 F.2d 1122 (2d Cir. 1973). It is the first time, to this court's knowledge, that the National Association for the Advancement of Colored People ("NAACP") has sought legal action to Oppose the development of low-income housing designed to aid minority groups. *fn1" Compare Jones v. Tully, 378 F. Supp. 286 (E.D.N.Y.1974), Aff'd, 510 F.2d 961 (2d Cir. 1975).

 The plaintiffs are individuals living near a proposed housing project and community and homeowner associations which represent the interests of area residents. They seek to enjoin the use of federal funds for the construction of a low-income highrise *fn2" apartment building. They allege that the development will further the creation of an area of minority concentration and upset the delicate racial balance which presently exists. *fn3"

 Defendants are Patricia Harris, Secretary of the Department of Housing and Urban Development (HUD), and the developers of the proposed complex. The jurisdiction of this court is based on the Thirteenth and Fourteenth Amendments to the United States Constitution, the Fair Housing Act of 1968, 42 U.S.C. § 3601, Et seq., the National Environmental Policy Act of 1969, 42 U.S.C. § 4321, Et seq., and 28 U.S.C. 1343. *fn4" Plaintiffs ("homeowners" or "area residents") sue as a class comprised of all New York State residents who live near the proposed development. *fn5" Initially, the plaintiffs sought a preliminary injunction. During the hearing on the preliminary injunction, the court found a sufficient basis to proceed to a trial on the merits. Fed.R.Civ.P. 65. *fn6" The court must now determine whether to issue a permanent injunction.

 FINDINGS OF FACT

 A. The Proposal

 The proposal in issue involves federally funded low-income housing. On June 3, 1977 HUD published a Notification of Fund Availability ("NOFA") for 1,000 family dwelling units to be funded under the Section 8 Housing Assistance Payments Program ("§ 8"). *fn7" On June 22, 1977 the developer, in response to the NOFA, submitted a preliminary proposal for the construction of new § 8 low-income housing. *fn8" The proposed development was a 96 unit six story apartment house to be located at the corner of Hill Street and Tompkins Avenue on Staten Island ("Tenhill").

 On August 10, 1977 HUD informed the developer that the preliminary proposal was approved and that $ 719,568 in federal funds was reserved for the project. HUD directed the developer to furnish information for the final proposal. HUD also notified the local New York City authorities, requesting objections to the proposal. Apparently, no objections were filed. On July 6, 1978 HUD approved the final proposal for low-income housing.

 HUD had previously reviewed a proposal submitted by the developer for housing for the elderly at the same site. That proposal was disapproved by both the Equal Opportunity ("EO") and Housing Management ("HM") Divisions of HUD. *fn9" The EO specialist indicated a likelihood of increased minority population in census tract 29 discussed Infra, not indicated by the 1970 census data. He found that the complex would create an undue concentration of subsidized housing in the area. The HM analysts had similar objections. They recommended a housing survey to ascertain the need for additional housing in the area because several projects in the vicinity were having difficulty renting their units. John O'Rourke, an HM analyst, indicated in his supplemental report that the proposed project would adversely affect the other subsidized housing. He indicated a generally questionable and unsavory neighborhood with a high occurrence of muggings and drug use. He indicated that he feared for the safety of the elderly and believed the site very inappropriate for any housing.

 The various HUD branches *fn10" also considered the preliminary and final proposal for low income housing. All but the Economic and Market Analysis Division ("EMAD") found the preliminary proposal to be acceptable. The EMAD, however, disapproved the proposal because the site was impacted with subsidized housing. *fn11" The analysis also indicated that the 1970 census data did not reflect the current condition of the neighborhood. However, HUD decided to approve the final proposal on the basis of the recommendations of its other branches, and filed its report. HUD's technical checklist on that report indicated that the preliminary proposal was approved by only four of its six branches. The HM and EMAD recommendations were not listed. The report indicated, however, that the proposal was approved on the basis of All reviews.

 The final HUD report on the proposal was submitted after the institution of this action. This court had remanded the matter of HUD to reconsider the site proposal and to review the EMAD report. An EO specialist, Eli Forman, prepared the final report. His report and findings were limited to census tract 29. His conclusions concerning the racial composition of the census tract were based mainly upon the 1970 census data. Nevertheless, he found a high percentage of minorities in the Stapleton Houses project, which is a public housing project in census tract 29 adjacent to the proposed site. He indicated that the only updated material available showed a dramatic increase in the number of minorities in the housing project. He found a need to de-escalate the racially sensitive housing market in the census tract, and recommended a public relations program to overcome the high crime stigma of the neighborhood. The proposal was reapproved by HUD over any previously filed divisional objection and the matter was brought before the court for a hearing on the preliminary injunction.

 B. The Area

 Tenhill is located in census tract 29 ("Tract"). Tract 29 is an area encompassing parts of the Stapleton-Concord section of Staten Island. Its designated boundaries are Tompkins Avenue to the East, Vanderbilt Avenue to the South, Broad Street to the North, and Van Duzer Street to the West. Tenhill is approximately 300 feet from Vanderbilt Avenue and is adjacent to Tompkins Avenue. Tompkins Avenue is the boundary between Tracts 29 and 27. *fn12" Vanderbilt Avenue is the dividing line between Tracts 29 and 40. *fn13"

 HUD considered Tract 29 to be the relevant area for estimating total minority concentration. HUD relied exclusively upon the census data compiled in 1970 for Tract 29 in making that determination. In 1970 that data indicated a total population of 4,623 in Tract 29. There were 4,000 white persons and 623 minority persons. Thus in 1970 the minority population for Tract 29 was approximately 12.8% Of the total population. HUD considered the census data to be accurate, even though it recognized that the 1970 census data was outdated. The evidence supports the conclusion that because the 1970 census data was clearly outdated it was an insufficient indicator of minority and low-income concentration in the area.

 The technical boundaries of Tract 29 do not represent the relevant neighborhood for any consideration of minority or low-income population. The evidence at trial indicates the difficulty with confining the neighborhood to Tract 29. Based on the testimony of area residents, the proximity of the housing complexes in Tracts 29 and 40, and the natural and man-made boundaries in the area, the court finds that the relevant neighborhood extends beyond the imaginary boundaries of Tract 29. The relevant community includes Tract 27 and parts of Tracts 29 and 40. It extends along Canal and Water Streets in Tract 27, Broad Street in Tract 29 up to Targee Street. Targee Street is the western boundary from Broad Street to Mary Street in Tract 40. The railroad track which represents the southeastern border of Tract 40 is the outer boundary of the community. That boundary extends to Bay Street. The eastern boundary is Bay Street from Greenfield Avenue to Water Street. *fn14" The center of this community is concentrated with high rise apartment complexes in the immediate vicinity of Tenhill. This core of the neighborhood shows an excessive concentration of a low-income, minority population. *fn15"

 The community contains mostly low density one and two family dwelling units. In the context of Staten Island housing, and this neighborhood, a six story apartment complex represents a dominant feature in the community. Undoubtedly Tenhill, if constructed, will have a significant impact on the community.

 Tract 29 is dominated by the Stapleton Houses Project. Stapleton Houses is a 693 unit public housing development. Its physical plant extends over a large segment of the land area of Tract 29. It has a population of more than 2,500 people, more than half of the 1970 census tract population. Stapleton Houses is situated across the street from Tenhill and is within 100 feet of the proposed site. In 1970 80.7% Of the units were occupied by whites. By 1977 that figure had decreased to 34.1% And by 1978 whites occupied 25.1% Of the units. In 1970 only 36 families were receiving public assistance and only 63 families were headed by a single parent. In 1977 these figures were 243 and 280 respectively, and by 1978 there were 285 and 317 such families respectively. In 1972 the project had a crime rate of 5.6% Per 1,000 population. In 1977 that figure had changed to 25.2%, the highest of all public housing projects on Staten Island.

 Stapleton Houses and five other complexes in Tract 40 are the center of the neighborhood. That these complexes represent part of one neighborhood is evidenced by the distance between the projects; the community attitudes about the projects; the similar nature of the housing and its contrast to the low density housing in the area; the accessibility to each complex from any other; the proximity of shopping centers, recreation centers, houses of religious worship and schools; and the racial and economic composition of the complexes. In combination they represent a dominant aspect of the neighborhood.

 This series of high-rise dwelling complexes is in the immediate vicinity of Stapleton Houses and Tenhill. They lie along the Vanderbilt Avenue border of Tracts 29 and 40. They are between 1500 feet *fn16" and 3200 feet *fn17" from Tenhill. HUD did not consider the impact of these complexes in reaching its decision to approve Tenhill and did not investigate the minority concentration in them because HUD considered only those complexes within the boundaries of Tract 29 to be relevant. The court finds that these complexes are a significant aspect of the community and should be viewed as part of the relevant neighborhood.

 The relevance of these complexes is apparent from their proximity to Tenhill and their statistical prominence. The Park Hill apartments is an 806 unit complex approximately 2,000 feet from the proposed site. As of June 1977, of 749 units occupied, only 5 were occupied by whites. Minorities occupied the remaining 744 units and there were 50 vacancies. There has been a consistently high pattern of turnovers each year. The statistics demonstrate a dramatic increase in the number of minority families since 1970. In 1970, 401 of 800 units were occupied by whites. By 1977, of 749 units occupied, only 5 were occupied by whites. Moreover, 701 of 749 units were under the § 8 Housing Assistance Plan, including the 5 white units. Thus, by 1977 the minority population had doubled to 99% Of the total unit population.

 The Fox Hill complex is approximately 1,500 feet from Tenhill. The minority population is 99% Of the 360 residential units occupied. The vacancy rate was constantly between 6% And 10% Of the available units. Moreover, of 291 individuals receiving income, 125 were on welfare and 25 were unemployed. The St. George Plaza complex consists of 305 units with a 9% White population for 1978. The Seaview Arms has 84 units with a white population of 5%. *fn18" Thus, with due consideration for the nature of Staten Island housing and demographics, these complexes are a dominant feature in the area.

 The remainder of Tract 29 is a mixture of vacant lots, operating or abandoned business facilities, and one or two family houses. The apartment complexes overshadow the low density housing. No statistics were presented by HUD concerning the racial composition of the residents in these houses. No survey was conducted to ascertain the racial mixture in the houses before approving Tenhill. However, the evidence indicates that the housing around the complexes in Tract 29 is racially mixed. *fn19" The New York City tax records indicate a relatively stable low-income community with an average assessed housing valuation between $ 3,000 and $ 8,000, with a large concentration in the $ 4,000 to $ 5,000 range.

 The main business district in Tract 29 has deteriorated significantly during the period from 1970 to the present. Numerous businesses, including two supermarkets and a bank branch, have closed not only because of the rising criminal activity in the area, but also because of the inability of the large low-income population to generate sufficient capital to support business enterprises. A supermarket adjacent to Tenhill has remained closed since December 1975. It and other abandoned buildings evidence the continuing urban blight in the area.

 A significant cause of the deterioration is the increased criminal activity in the neighborhood. Tenhill is located in the 120th precinct. Most of the criminal activity in the 120th precinct centers around the Stapleton Houses and Fox Hill complexes. In 1970 the 120th precinct ranked 24th of 73 precincts in New York City in terms of felony complaints. The precinct is divided into 22 sectors. The Stapleton and Fox Hill apartment complexes are located in sectors C and E respectively. These two sectors extend into Tracts 29 and 40. From 1970 to 1977 the precinct experienced a total crime increase of 60.6%. The Stapleton-sector C area consistently ranked first or second of the 22 sectors in terms of criminal activity. The Park Hill-sector E area ranked 9th of 22 in 1970 and has grown progressively worse. It ranked 2nd of 22 in 1974 to 1977, and 3rd of 22 in 1978. The Stapleton sector experienced a 72.8% Increase in crime from 1970 to 1977. The Park Hill sector experienced a 161.6% Crime increase during that period. Thus the proposed site is centered between the areas of highest criminal activity on Staten Island. Moreover, while crime has risen, the city's financial crises have forced cutbacks in the police workforce for the area, *fn20" raising the likelihood of sustained criminal activity in the area.

 The statistics produced by the New York City Fire Department indicated a strained delivery system. While the fire companies servicing the area rank in the bottom half of all city fire companies in terms of activity, they are very active in terms of the Staten Island community. While manpower has decreased, there have been a great number of fires and false alarms in the area. Significantly, the companies serve a relatively small area of Staten Island. However, because of the number of runs made, the companies ranked 1st and 5th in terms of activity of the 16 fire units on Staten Island in 1977.

 The public schools servicing the area near Tenhill are presently minority and low-income concentrated. Public School (P.S.) 14 is approximately 25 feet from Tenhill. In 1974 it had a minority population of 44%. This steadily increased to 73% In 1978. The school is 98% Utilized at present. Moreover, 84% Of the children at P.S. 14 are eligible for the free lunch program, which indicates their low-income background. The school ranked 38 of 39 on Staten Island in terms of reading level achievement.

 Similarly, the minority attendance at Junior High School (J.H.S.) 49 increased from 28% In 1974 to 51% In 1978. This influx of minorities into the schools reflects the general influx of minorities into the area. The other neighborhoods or housing projects which contribute students to J.H.S. 49 are predominantly white and would not account for the increased minority attendance. J.H.S. 49 is 85% Utilized. It is within 500 feet of the proposed site. Two other schools, P.S. 13 and P.S. 57 *fn21" also service the neighborhood residents. It was unlikely, however, that children from Tenhill would attend either school. *fn22" Thus, younger children from Tenhill would attend either J.H.S. 49 or P.S. 14.

 The evidence established that over the years the area has experienced rapid deterioration. Area residents believe the community is presently racially balanced, but attribute the dramatic deterioration to the apartment complexes in the area. It is clear that an increase in low-income housing units will create an intolerable situation for both black and white neighborhood residents. The creation of Tenhill will insure the ghettoization of the area. While the court does not use that phraseology lightly, it finds that its use here is appropriate. The neighborhood ...


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