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HERNANDEZ v. PIERCE

April 29, 1981

Esther HERNANDEZ, Maria Rodriguez, Bienvenida Matias, Deborah Horton, and Margarita Rodriguez, in behalf of themselves and all others similarly situated, Plaintiffs,
v.
Samuel PIERCE, as Secretary of the United States Department of Housing & Urban Development, Anthony Gliedman, as Commissioner of the Department of Housing Preservation and Development of the City of New York, and the Chinatown Planning Council Housing Development Fund Company, Inc., Defendants



The opinion of the court was delivered by: SOFAER

Plaintiffs are tenants of two city-owned buildings that the City wants to demolish and replace with low-income housing for the elderly and handicapped. Plaintiffs attempted to dissuade local and federal officials from proceeding with the plan; their claims were heard but repeatedly rejected. Now, plaintiffs have brought this suit for declaratory and injunctive relief, alleging that the demolition would violate federal law and their civil rights. They base their action, however, on broad Congressional statements of policy that do not provide private citizens with legally cognizable rights. The action must therefore be dismissed for lack of jurisdiction and for failure to state a cause of action.

In 1965, the New York City Board of Estimate adopted an urban renewal plan, previously approved by the City Planning Commission ("the Commission"), for an area on Manhattan's Lower East Side; the plan was called the Seward Park Extension Urban Renewal Plan. The City proceeded to acquire title to privately owned apartment buildings within the site. It took title to the two buildings in which plaintiffs reside in 1967, but permitted the residents to remain there pending demolition pursuant to the urban renewal plan. Defendant New York City Department of Housing Preservation and Development ("the Department") prepared an Amended Plan for the Seward Park area in July 1979 and submitted it to the Commission in October. The Commission certified the Amended Plan.

At issue here is the Amended Plan's provision for Site 2A, a 156-apartment housing project for low-income elderly and handicapped persons. The sponsor of the project for Site 2A is defendant Chinatown Planning Council Housing Development Fund Co., Inc. ("the Fund"), a nonprofit corporation organized under the New York State Private Housing Finance Law.

 The local community board and the Commission held hearings on the Amended Plan. Some parties opposed the demolition of the buildings in which plaintiffs reside; the Department sought to explain why that demolition was necessary. The affidavit of Marvin Wilkinson, the Department's Director of Planning, establishes that the demolition of these two buildings was considered, and approved, at every stage of the local deliberations. Affidavit of Marvin Wilkinson, Feb. 20, 1981. The Commission requested the Department to respond to these tenants' concerns, and officials did so both at a meeting of the Commission and in writing. Charles Reiss, Acting Deputy Commissioner of the Department, sent a letter to the Commission explaining in detail why the Commission had concluded that the two buildings should be demolished. Id. Ex. B.

 In February 1980, the Commission adopted and submitted to the Board of Estimate a resolution approving the Amended Plan, specifically including demolition of the buildings at issue. The Board of Estimate held a public hearing on the Amended Plan in April 1980; tenants from the buildings at issue opposed the planned demolition. The Board of Estimate adopted one amendment involving a site other than Site 2A, but otherwise approved the Amended Plan. Demolition of the buildings at issue was provided for in the Amended Plan, both as submitted to, and as approved by, the Board of Estimate.

 Pursuant to the agreement between the City and the Fund, the City must convey to the Fund title to the project site after the requisite buildings have been demolished. The Fund expects to obtain financing for the project from defendant United States Department of Housing and Urban Development ("HUD"), in the form of construction loans and rent subsidies.

 Plaintiffs, suing on behalf of the tenants of the two buildings, assert jurisdiction based upon 28 U.S.C. § 1331. *fn1" They allege three causes of action. The first is against HUD; it alleges that, in agreeing to fund the Seward Park project for Site 2A, HUD violated "the policies HUD is required to follow in administering the federal housing programs and funds.... These policies require HUD to preserve and conserve existing housing." Amended Class-Action Complaint P 36 ("Complaint"). The second claim is against the Department; it alleges that the Department violated 42 U.S.C. § 1983 by depriving plaintiffs of rights secured to them by particular federal housing laws. Complaint P 37. The third claim is similar to the second, but bases the purported rights on a different provision of the housing laws. Complaint P 38. No cause of action is asserted against the Fund.

 I. The Administrative Procedure Act Claim

 Plaintiffs base their claim against HUD upon two alleged agreements between HUD and the Fund: an agreement to provide a loan for land purchases and building construction in Site 2A, pursuant to 12 U.S.C. § 1701q; and an agreement to provide the Fund with rent subsidies, pursuant to 42 U.S.C. § 1437f. Complaint P 23. Plaintiffs allege that these agreements violated statutory policies that "require HUD to preserve and conserve existing housing." The statutes allegedly violated are the Housing and Community Development Act of 1974, § 801, 42 U.S.C. § 1441a(c) ("HCDA § 801"); Housing and Community Development Amendments of 1978, § 902, 42 U.S.C.A. foll. § 5313 (Historical Note) ("HCDA § 902"); and National Neighborhood Policy Act, § 202, 42 U.S.C.A. foll. § 1441 (Historical Note) ("NNPA § 202"). Complaint P 36. This claim must be dismissed because the Administrative Procedure Act ("APA") does not authorize review of these actions.

 The APA exempts from judicial review "agency action (that) is committed to agency discretion by law." 5 U.S.C. § 701(a)(2). The two statutory provisions pursuant to which HUD has acted are expressly discretionary. With respect to construction loans, "the Secretary may make loans ... for the provision of ... housing ... for elderly or handicapped families." 12 U.S.C. § 1701q(a)(2) (emphasis added). With respect to rent subsidies, "the Secretary is authorized to make assistance payments" for lower-income housing. 42 U.S.C. § 1437f(b)(2) (emphasis added). These statutes do not purport to constrain the Secretary of HUD's discretion in determining whether or not to provide such housing assistance. *fn2"

 Plaintiffs point to three provisions that they claim limit the Secretary's discretion: HCDA § 801, *fn3" HCDA § 902, *fn4" and NNPA § 202. *fn5" They contend that these provisions "undeniably state a Congressional policy that the national housing laws be administered ... with an affirmative concern for preserving decent housing." If HUD agreed to fund the Site 2A project "without having considered the issue of plaintiffs' homes, or without having made some affirmative effort to preserve plaintiffs' homes, then HUD has ignored the mandate of Congress; and that is illegal." Plaintiffs' Supplemental Memorandum at 6-7 (footnote omitted).

 This argument is unavailing for two reasons. First, the cited sections are not constraints on the two types of funding decisions made here. The provisions pursuant to which HUD has acted do not require the Secretary to attempt to preserve plaintiffs' homes. See 12 U.S.C. § 1701q(a)(2); 42 U.S.C. § 1437f(b). Nor do the sections cited by plaintiffs impose any such obligation. HCDA § 801 is a broad declaration of purpose that encourages preservation of existing housing. HCDA § 902 is the preamble to a law requiring HUD to study and make recommendations on minimizing involuntary displacement. NNPA § 202, the preamble to a law establishing a commission to study neighborhood deterioration, generally encourages conservation of existing neighborhoods. These provisions do not purport, nor can they reasonably be construed, to limit the Secretary's broad discretion in financing lower-income housing. Plaintiffs point to nothing in the legislative history of these sections that suggests otherwise.

 Even if these provisions were intended to constrain HUD's funding decisions, APA review would nevertheless be unavailable. These broad declarations of policy, taken alone, cannot be translated into manageable standards for judicial review. "Agency action is committed to agency discretion where "statutes are drawn in such broad terms that in a given case there is no law to apply.' " Greater New York Hospital Association v. Mathews, 536 F.2d 494, 499 (2d Cir. 1976) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S. Ct. 814, 820, 28 L. Ed. 2d 136 (1971)). That is precisely the situation here. The Congressional declarations upon which plaintiffs rely at most encourage HUD, in HCDA § 902's words, to minimize dislocation "consistent with other program goals and objectives." Had Congress sought to provide standards by which courts could review the dislocative effects of HUD funding decisions, it would have adopted more precise substantive requirements, rather than ambiguous declarations of policy. An attempt to review HUD's actions here pursuant to the ...


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