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April 10, 1985

BONNIE BRECKER, EUGENE KAMISH and JOEL HOCHBERG, on behalf of themselves and all others similarly situated, Plaintiffs, against QUEENS B'NAI B'RITH HOUSING DEVELOPMENT FUND CO., INC., SAMUEL R. PIERCE, JR., as Secretary of the United States Department of Housing and Urban Development, Defendants.

The opinion of the court was delivered by: PLATT



 The disposition of this suit turns largely on how to interpret Section 202 of the Housing Act of 1959, 12 U.S.C. § 1701q (hereinafter referred to as "Section 202" or "the Act"). In this Court's view, the primary issue raised by plaintiffs' suit is whether a recipient of federal funds, awarded pursuant to section 202, is required by law or the Constitution to use those funds to benefit all four classes affected by Section 202 or whether such funds may be earmarked to benefit only one of the four classes of persons covered by Section 202 whose needs, as defined in the statute, are materially different from those of the other classes covered by Section 202.

 Plaintiffs, Eugene Kamish and Joel Hochberg, *fn1" claim to fall within the class of individuals covered by Section 202 as the "developmentally disabled." Despite their conceded handicaps, plaintiffs allege that they are capable of living independently and need no special services to be provided by the particular housing facility in which they live. They further allege that any services which they might need can be obtained in the community surrounding the Queens B'nai B'rith (hereinafter referred to as "QBB") Section 202 funded housing project into which they have been denied admission.

 By reason of their particular attributes, described above, plaintiffs assert that they have a right to be considered for places in the Section 202 project sponsored by QBB. Because plaintiffs were denied places in QBB's facility with HUD's approval, plaintiffs argue that their exclusion violates the anti-discrimination provisions, Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, the Section 202 Housing Act itself, the Developmentally Disabled Assistance and Bill of Rights Act, 41 U.S.C. § 6000 et seq., and the Due Process and Equal Protection Clauses of the Constitution.

 The federal defendant, Samuel R. Pierce, Secretary of the U.S. Department of Housing and Urban Development (hereinafter referred to as "HUD"), and defendant QBB argue that HUD funded QBB's project to serve only the well elderly and mobility impaired. *fn2" The federal defendant HUD asserts that the terms of QBB's funding do not permit QBB to accept as residents members from the other two classes covered by Section 202, the developmentally disabled and the chronically mentally ill. Moreover, both defendants note that QBB was selected as a sponsor of a housing project for the well elderly specifically because of QBB's experience in working with this group; that is, persons who are 62 years of age and older who do not require special in-house services. Both defendants also note that QBB has no experience working with the developmentally disabled nor doess the project offer any special services for this group.

 The only specific service offered by QBB at its own expense is a full-time "social coordinator" who is supposed to facilitate the well elderly residents' ability to rely on each other for support in their day-to-day lives in the building. Because the building has 190 units, QBB's asserted philosophy is that there should be enough well elderly within the building to permit them to form both their own interdependent community within the building and smaller social groups. Plaintiffs argue that the provision of one social coordinator does not constitute a special service; plaintiffs otherwise ignore QBB's asserted philosophy concerning the creation of an independent, interdependant community for the elderly.

 Procedurally, this action is not before the Court on a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 by the federal defendant as joined by defendant QBB. Plaintiffs have cross-moved for summary judgment. For the reasons stated herein, the Court rules that based on the undisputed facts in this case, summary judgment lies in favor of the defendants as a matter of law. As a result of this decision, the Court does not address plaintiffs' motion for class certification.

 Statutory Scheme of Section 202

 The purpose of Section 202 as stated in the statute is to assist private nonprofit corporations or public agencies "to provide housing and related facilities for elderly or handicapped families." 12 U.S.C. § 1701q(a)(1).

 Under the Act, HUD is authorized to make long-term, low-interest rate loans, 12 U.S.C. § 1701q(a)(3), to any sponsor or developer which has shown that it is otherwise "unable to secure the necessary funds from other sources upon terms and conditions equally as favorable" as the loans available under Section 202. 12 U.S.C. § 1701q(a)(2)(A). A sponsor or developer may also apply to HUD to receive on behalf of its low income tenants, rent subsidy money for a number of units in the project pursuant to Section 8 of the U.S. Housing Act of 1937. 12 U.S.C. § 1701q(g). *fn3" The facts that a sponsor may receive a loan not otherwise available in the free market and rent subsidies so that the rent received is comparable with that which could be charged in the free market are not, however, the key features of Section 202 of relevance in this action.

 These key features are twofold: one relates to the definition of the four classes of individuals and their families eligible for Section 202 funded housing; the other relates to the fact that Section 202 funds are limited to the development cost of a project and do not cover the ongoing costs of providing the special services that are needed by certain Section 202 eligible groups. A Section 202 project sponsor must pay for these services or seek reimbursement from other government programs.

 (a) Eligible Groups

 Section 202, 12 U.S.C. § 1701q(d)(4), states that a person who is elderly, defined simply as being smeone who is 62 years of age or older, is eligible to participate in a Section 202 program.

 It also states that a person who is handicapped is eligible; such a person

 shall be considered handicapped if such person is determined, pursuant to regulations issued by the Secretary, to have an impairment which (A) is expected to be of long-continued and indefinite duration, (B) substantially impedes his ability to live independently, and (C) is of such a nature that such ability could be improved by more suitable housing conditions.

 12 U.S.C. § 1710q(d)(4) (emphasis added).

 Beyond the above definition for a handicapped person, Section 202 provides nothing further. More specific definitions for two of the three groups of handicaped persons eligible for Section 202 housing, the mobility impaired and the chronically mentally ill, are found elsewhere. However, as more detailed definitions for these two groups are not of importance to this action, we will go on to the third group of handicapped persons, the developmentally disabled -- which plaintiffs allege themselves to be and which is the fourth and last group eligible for Section 202 housing.

 Section 202, 12 U.S.C. § 1701q(d)(4), further satates that a "person shall also be considered handicapped if such person is a developmentally disabled individual as defined in § 102(5) of the Developmental Disabilities Services and Facilities Construction Act of 1950." Id. The definition of a developmentally disabled individual, as codified at 42 U.S.C. § 6001, provides that:

 (7) The term "developmental disability" means a severe, chronic disability of a person which --

 (A) is attributable to a mental or physical impairment or combination of mental and physical impairments;

 (B) is manaifested before the person attains age twenty-two;

 (C) is likely to continue indefinitely;

 (D) results in substantial functional limitations in three or more of the following areas of major life activity: (i) self-care, (ii) receptive and expressive language, (iii) learning, (iv) mobility, (v) self-direction, (vi) capacity for independent living, and (vii) economic self-sufficienty; and

 (E) reflects the person's need for a combination and sequence of special, interdisciplinary, or generic care, treatment, or other services which are of lifelong or extended duration and are individually planned and coordinated.

 (Emphasis added.) The term facility for a developmentally disabled person is also codified at 42 U.S.C. § 6001; such a facility is defined as

 a facility or a specified portion of a facility, designed primarily for the delivery of one or more services to persons with one or ...

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