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SOUTHSIDE FAIR HOUS. v. CITY OF NEW YORK

November 2, 1990

SOUTHSIDE FAIR HOUSING COMMITTEE, LUCY RODRIQUEZ, MIGUEL DE LOS SANTOS, ISRAEL ROSARIO, CONRADO DIAZ, NORMA DIAZ TEJADA, BOLIVAR PASCUAL, CARMELO GONZALEZ, FRANCISCO PEGUERO, LUZ BAEZ, DIANA DAWSON, BLANCA RIVERA, IRMA MONTERO, CHARLES L. MERCADO, MARITZA ANDUJAR, REYNA GONZALEZ, IRIS PENA, LEROY BECKLES AND GUSTAVO MUESES, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT AND UNITED TALMUDIC ACADEMY, TORAH V'YIRAH, INC., BROOKLYN VILLAS, INC. AND BROOKLYN VILLAS LIMITED PARTNERSHIP, INC., DEFENDANTS.



The opinion of the court was delivered by: Nickerson, District Judge.

MEMORANDUM AND ORDER

Plaintiffs brought this action for, among other things, an order (a) enjoining any further construction or planning for construction on certain land known as Site 4 in Williamsburg Urban Renewal Area I (Area I), and (b) rescinding the sale of the land by the City of New York (the City).

Plaintiffs are Southside Fair Housing Committee (the Housing Committee) and eighteen persons describing themselves as Hispanics or Latinos and African-Americans. The pertinent defendants are the City, the New York City Department of Housing Preservation and Development (the Development Department), and the United Talmudical Academy, Torah V'Yirah, Inc., the educational arm of an Hasidic congregation called Congregation Yetev Lev D'Satmar. This memorandum will refer to these two entities jointly as "the Academy."

On plaintiffs' motion for a preliminary injunction the court took evidence, and, at the request of the parties, consolidates the hearings on the motion with the trial on the merits.

I.

Plaintiffs ask the court to prevent the Academy from further developing a synagogue, a yeshiva, and faculty housing on Site 4 sold to the Academy by the City, and to set aside the sale. Plaintiffs say that the sale violated their rights under the First and Fourteenth Amendments, and that in making it the City intended both to create an Hasidic "enclave" to the detriment of the Hispanic community and to support the Satmar Hasidic religion.

Many of the critical evidentiary facts are undisputed.

In 1967 the City, along with the federal and state governments, created Area I, consisting of about nineteen city blocks in Williamsburg, Brooklyn. The City condemned and cleared deteriorated property and provided for the development of the area under an Urban Renewal Plan (the Plan).

Before clearance both Hispanics and Jews, both Orthodox and Hasidic, lived in Area I. The residents immediately to the north of Area I were and still are largely Hispanic. Those living to the east were and are for the most part Hasidic or Orthodox Jews.

Site 4 occupies about one square block. Before 1967 it contained low-rise private housing, some commercial businesses, at least two synagogues, one run by the Academy, ritual baths, and a yeshiva. The residents were both Hispanic and Jewish, Orthodox and Hasidic.

The present population of Area I is mixed. There are four large, high-rise subsidized housing developments, each with occupants of mixed ethnic composition, Independence Towers, Taylor-Wythe Houses, Clemente Plaza, and Bedford Gardens. Two smaller units of market rate housing, PAZ-Ross Houses and Bedford Rehabs, were purchased almost exclusively by Orthodox and Hasidic Jews. In addition, certain other parcels are under development as condominiums, known as Brooklyn Villas, by UJO, an organization with some overlap in membership with the Academy. The Brooklyn Villas matter is also a part of the case and has been tentatively settled by the parties.

The percentages of white and non-white occupancy of housing units in the subsidized housing range from 54% non-white and 46%, white in Clemente Plaza to 68% white and 32% non-white in Independence Towers. In Area I whites occupy 1596 housing units and minority members 935.

To the north of Area I is another urban renewal area, Williamsburg Urban Renewal Area II (Area II), created in 1984 to rehabilitate and develop subsidized, low income housing. Area II has mainly older, low-rise apartment buildings, occupied chiefly by Hispanics.

During the 1970s the City chose urban renewal sponsors and developers on a "sole source" basis. The Development Department staff consulted with organizations and people in the local community, including members of the local Community Boards, and sought out persons established in the community who had succeeded in development projects. The tentative designation of a developer was reviewed by the local Community Board and the City Planning Commission (the Planning Commission). The final designation was made by the City Board of Estimate.

Originally the City considered Site 4, as well as other sites in Area I, for use as a park. However, by the early 1970s the Development Department started to discuss other so-called "institutional" uses for Site 4. The Academy approached the Development Department to construct on the site a nursing home, a yeshiva, and a medical facility.

In July 1977 the Development Department proposed subdividing the site into Sites 4A, 4B, and 4C and tentatively designated the Academy as the developer of the site.

In May of 1978 the Development Department submitted the Academy's proposals for Sites 4A, 4B, and 4C to the Planning Commission, and in August 1978 submitted amendments to the Urban Renewal Plan, changing the designated use of Site 4 from a park to "institutional" use. The papers supporting the change set forth the proposed uses as a yeshiva, a health related facility, and a nursing home, and the designation of the Academy as the developer.

The then recently adopted provision of the City Charter known as the Uniform Land Use Review Procedure (the Review Procedure) required the amendments to go through various reviews and hearings. The Planning Commission first had to certify a proposal. Then the local Community Board, the Planning Commission, and ultimately the Board of Estimate had to hold public hearings, review the proposal, and approve or disapprove it.

On November 20, 1978 the Planning Commission certified the amended plan and the proposed disposition and referred the matter to the Community Board. The board held a public hearing on December 19, 1978, and on January 9, 1979 recommended approval of the Plan by a vote of 35 in favor, 5 against, and approval of the dispositions of Sites 4A and 4B to the Academy by a vote of 37 in favor, none opposed, and 4 abstaining. The board tabled the vote on Site 4C pending receipt of further information from the Academy as to its plans for further development in the area. On March 13, 1979 the Community Board approved the disposition of Site 4C to the Academy by a vote of 34 in favor and none against or abstaining.

In the meantime and in February 1979 the Planning Commission had held a hearing but withheld a vote until after the Community Board had voted on Site 4C. On March 28, 1979 the Planning Commission, after receiving the Community Board approval as to Site 4C, certified an approval of the amended plan. On the same date the Planning Commission approved the dispositions to the Academy of Site 4A as a Health Related Facility, Site 4B as a Medical Building, and Site 4C as a Religious School. On May 24, 1979 the Board of Estimate held a hearing and approved the amended plan and the dispositions.

In late 1979 the Academy asked to be allowed to build on Site 4C, a residence for the new Rebbe, the school chancellor, with space for meetings concerning congregation and school matters. The Development Department referred the matter to the Planning Commission. On December 20, 1979, Robert F. Wagner, Jr., the Chairman of the Planning Commission, advised the Development Department that the Planning Commission found the proposed change to be within the scope of the previous approval since 75 percent of the residence would be devoted to institutional purposes, and that the department could make the change administratively.

In April 1980 the Board of Estimate, after a public hearing, approved the transfer of Site 4C to the Academy, in accordance with a written contract and at the appraised value of $150,000. After receipt of the deed on October 20, 1980 the Academy constructed the Rebbe's residence and community office, completing it in 1981.

In the early 1980s the Academy had to abandon its plan for a nursing home and a health related facility because state funding was no longer available. The Academy thus requested that the Development Department change the use of Sites 4A and 4B to a school and dormitory housing and later to faculty housing.

In 1984 the Development Department proposed to amend the Plan, changing, among other things, the approved uses of Sites 4A, 4B, and 4C from the specific institutional uses to a generic institutional use and amending "institutional uses" to include "dormitory facilities affiliated with religious institutions." Theretofore "institutional uses", so far as relevant, had included only "synagogues, churches, day care centers, nursing homes, medical centers and related facilities," and "[s]chools and related facilities."

The Development Department brought this suggested amendment before the Community Board at a public hearing on February 28, 1984. Over five hundred people attended including Carmen Calderon, who later became one of the three leaders of plaintiff Housing Committee.

At the hearing Herbert Siegel, Director of Planning in the Development Department, explained that the City was going to do "something innovative in order to bring together two communities [Hispanic and Hasidic] that had previously had disputes." He said that the City was going to commit the funds realized from its sale of parcels in Areas I and II to assist in developing projects to benefit low and moderate income families. This was referred to as a cross subsidy, originally proposed by Commissioner Anthony Gliedman of the Development Department because of the then lack of federal and state funds for housing.

At the Community Board meeting every site in Areas I and II was discussed, including the proposed use of Site 4. The Academy's use of Site 4A for a yeshiva and Site 4B for faculty housing was thus brought before the Community Board.

At the four hour meeting Siegel made the initial presentation and numerous others spoke. Siegel did not recall many speaking in opposition to the Academy's plans for Site 4. Most of the discussion concerned the relocation of thirty families displaced in Area II. The Community Board minutes of the hearing show that Ms. Calderon was aware that Sites 4A and 4B were to be sold to the Academy. She suggested that "all sales monies" including those from "institutional Site 4 should go into cross subsidy."

The amended plan was approved by the Community Board. A representative of the Community Board spoke at the Planning Commission's public hearing and urged approval. A spokesman for Epiphany Church, a largely Hispanic church, also voiced support for the plan and its speedy implementation, presenting a petition containing 1100 signatures. The Planning Commission gave its approval on April 9, 1984. After a public hearing on May 24, 1984, the Board of Estimate approved. This was all in accordance with the requisite Review Procedure. No one appeared in opposition at either hearing.

The final disposition of Sites 4A and 4B took place in 1988. On February 1, 1988 the property was appraised at a fair market value of $680,000. On July 14, 1988 the Board of Estimate, after public notice and hearing, approved the contract of sale between the City and the Academy at that appraised ...


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