housing authority under the provisions of article 5 of the former state housing law. See § 403, State public Housing Law. Among the powers vested in the BMHA as a public housing authority is the power to enter into contractual and other agreements with the federal government in connection with federal projects and other federally funded programs to provide housing for lower-income individuals. Public Housing Law § 37(1)(i). A "federal project" is a project aided or financed in part or in whole by the federal government. Id. at § 3(15). On the other hand, a "state project" is aided or financed in part or in whole by the state, but not in any way by the federal government. Id. at § 3(16).
BMHA and the City of Buffalo (City) administer 29 public housing projects, 25 of which are federal projects and 4 of which are state projects. Item 70 at PP 35-37. Two of the state-aided projects, Frederick Douglas Towers and Ferry-Grider Homes, are currently in operation. However, two state-funded projects representing some 960 apartment units, Ellicott Mall and Kensington Heights, are no longer in operation. Plaintiffs contend that defendants City of Buffalo, BMHA, and Higgins have taken steps to transfer the Kensington and Ellicott projects to private ownership and allowed these two projects to become uninhabitable. Id. at PP 216-20 & 207.
The New York State Division of Housing and Community Renewal (DHCR) provides housing authorities with state funding for their Section 8 programs. The BMHA state-aided projects receive no federal funds. In fact, without approval from the DHCR Commissioner, no state housing monies allocated to an authority or a municipality can be commingled with federal aid. Public Housing Law § 75. BMHA has agreed in its loan/subsidy contract with DHCR that it will not obtain funds from any source other than the state in connection with either of its state projects without first obtaining the approval of the Commissioner of DHCR. Moreover, in each BMHA contract with DHCR, the authority has agreed to place the funds and income with respect to the relevant project in a separate fund earmarked for the operation of that project. Item 83 at 2.
Since 1975, the City has received in excess of $ 269 million from defendant HUD as a grantee under the Community Development Block Grant (CDBG) program. The City has used the funds to pay for all or part of its housing code enforcement program. As a condition to receipt of CDBG funds, pursuant to 42 U.S.C. § 5304(b)(2), a grantee must "affirmatively further fair housing." Item 70 at PP 178-79, 183. As an additional condition to receipt of the CDGB funds, a grantee must administer the grant in conformance with Title VI of the Civil Rights Act of 1964, and Title VIII of the Civil Rights Act of 1968, also known as the Fair Housing Act of 1968, as amended in 1988. Id. at P 181. Finally, the Housing and Community Development Act requires that each CDGB funds recipient submit, pursuant to 42 U.S.C. § 5304(e), an annual performance report for defendant HUD's review. The report must specifically address a CDGB recipient's accomplishments with respect to Title VI and Title VIII compliance, and the recipient's efforts at meeting the statutory obligations to affirmatively promote fair housing under 42 U.S.C. § 5304(b)(2). Id. at PP 188-89.
Each defendant in each complaint, with the exception of the City of Buffalo, has filed a motion seeking dismissal and/or summary judgment challenging various plaintiffs' individual and class standing. A motion for summary judgment will be granted if it is shown "that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law." Fed. R. Civ. P. 56(c). See generally Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In this case, in light of the extensive filings of deposition testimony, affidavits, statements of material fact, numerous briefs and the hearing of oral argument, the standing issue may be more appropriately addressed on summary judgment. Thus, the burden is on defendants to show that there is no set of facts arising under the complaint upon which plaintiff can succeed. See Huntington Branch, N.A.A.C.P. v. Town of Huntington, 689 F.2d 391, 395 n.4. (2d Cir. 1982).
The Supreme Court's fair housing decisions which involve standing issues instruct that a particular plaintiff's standing greatly depends upon which law is used as the predicate for suit. In this case, plaintiffs proceed under a myriad of different statutes. Most of plaintiffs' efforts at redress, however, emanate from Title VIII's Fair Housing Act provisions and the Civil Rights Act of 1866, as codified at 42 U.S.C. § 1982. These two statutes do not share the lowest common denominator for admission into federal court warranted by Article III of the United States Constitution. Compare Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205, 209, 34 L. Ed. 2d 415, 93 S. Ct. 364 (1972) (holding Title VIII standing as broad "as is permitted by Article III of the Constitution" and extends to indirect victims of defendants' housing discrimination) with Warth v. Seldin, 422 U.S. 490, 512-14, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975) (standing to assert Trafficante claim denied under 42 U.S.C. §§ 1981, 1982, & 1983). However, at this point, it seems reasonable to this court to give plaintiffs the benefit of an Article III analysis of their claims before turning to any other jurisprudential limitations on standing.
Article III of the United States Constitution limits the jurisdiction of the courts to actual cases or controversies, one aspect of which is a plaintiff's standing to challenge the alleged wrong. The standing requirement generally is met only by a plaintiff with a personal stake in the outcome of the controversy, as measured by a distinct and palpable injury, which is causally connected to the conduct being charged against the defendant. See Allen v. Wright, 468 U.S. 737, 770, 82 L. Ed. 2d 556, 104 S. Ct. 3315 (1984). Therefore, plaintiff must allege that he has suffered a "distinct and palpable injury" as a result of the defendant's action. Havens Realty, 455 U.S. at 372 (quoting Warth v. Seldin, 422 U.S. 490, 501, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975)). Consequently, there are three elements of proof involved: injury, causation, and redressability. The plaintiff must (1) personally have suffered "some actual or threatened injury" that is (2) caused by or "fairly can be traced to" the defendant's challenged action, which (3) "is likely to be redressed by a favorable court decision." Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982).
In general, defendants' motions question whether plaintiffs have alleged sufficient facts to demonstrate a distinct and palpable injury. In this context, it is important to note that any allegations of abstract, hypothetical, or conjectural injury on plaintiffs' part are insufficient to impart the necessary standing to sue public entities or officials. Biggs v. Block, 629 F. Supp. 1574, 1577 (E.D.N.Y. 1986).
In part, the question becomes one of whether plaintiffs have alleged sufficient injury in fact. However, in a steering or community-wide fair housing case such as this, plaintiffs' complaint may have to articulate with greater specificity the nature of the injury and how it was caused by the defendant's violation than would ordinarily be required. In fact, the Supreme Court has suggested the inclusion of more detail on the causation elements necessary to establish the plaintiff's standing to sue. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 376-78, 71 L. Ed. 2d 214, 102 S. Ct. 1114 (1982); Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 109-11, 60 L. Ed. 2d 66, 99 S. Ct. 1601 (1979); Warth, 422 U.S. at 502-08. Only one plaintiff with standing is required for a case to be decided on its merits. See Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 263-64, 50 L. Ed. 2d 450, 97 S. Ct. 555 (1977).
Moreover, although a plaintiff may have alleged injury sufficient to obtain a hearing on the question of a defendant's liability for damages, that plaintiff may not have met the standard to be heard on a claim for injunctive or declaratory relief. Id.; see also City of Los Angeles v. Lyons, 461 U.S. 95, 101-02, 75 L. Ed. 2d 675, 103 S. Ct. 1660 (1983). The latter rule takes on particular importance in cases, like this one, which are filed as class actions.
The question of plaintiffs' standing in a class action suit does not end with the constitutional inquiry into an individual plaintiff's standing to raise issues generally. For example, "if none of the named plaintiffs purporting to represent a class establishes the requisite of a case or controversy with the defendants, none may seek relief on behalf of himself or any other member of the class." O'Shea v. Littleton, 414 U.S. 488, 494, 38 L. Ed. 2d 674, 94 S. Ct. 669 (1974). Additional qualifications of a class representative, pursuant to Fed.R.Civ.P. 23, must also be met. A plaintiff must have, assuming common issues, individual standing to raise those common issues.
II. STRING CHALLENGE TO THE FIRST AMENDED BELMONT COMPLAINT
Plaintiffs Jessie Comer and Jewel Culverhouse are minority, low-income residents of the City of Buffalo. The contention is that each plaintiff is eligible for Section 8 -- Existing Housing subsidies administered by defendants HUD, Belmont, and Amherst. Plaintiffs allege that many of defendants' policies, practices, and procedures discriminate against them on the basis of their minority race and have contributed to the creation and perpetuation of segregated housing patterns throughout Erie County.
Among all of the policies complained of, plaintiffs target two in particular in this complaint. The first policy provides local residency preferences to Section 8 program applicants who reside or work in the suburbs surrounding the City of Buffalo. Secondly, plaintiffs allege that Belmont failed to conduct an adequate outreach program. The court will discuss the outreach issue, common to both the Belmont and RAC complaints, in section III of this order.
A. The Local Preference Claim
The Section 8 housing program was enacted for the purpose of aiding lower income families to obtain housing assistance payments for existing newly constructed and substantially rehabilitated housing. 42 U.S.C. § 1437(f). Defendant Belmont is the public housing agency (PHA) of defendant Town of Amherst and serves as the administrator of a consortium of 41 communities in Erie County, New York. There are presently three Section 8 programs administered by Belmont: the certificate program, the housing voucher program, and the moderate rehabilitation program. The rehabilitation program is not at issue in this suit.
Under the certificate program, persons entitled to rental assistance may receive assistance for an apartment of their choice within certain geographical limits established by HUD. Individuals pay no more than a set percentage of their combined monthly income toward rent and utilities.
Under the voucher program, individuals may use their rental assistance subsidy anywhere in Erie County. There is no limit on the amount of rent a tenant pays, since the tenant must contribute the shortfall between the amount of rent and the subsidy, which is based on a "payment standard" established by HUD.
As with most public assistance programs, there are more applicants than funds available for assistance. Consequently, defendant Belmont devised a waiting list for all Section 8 applicants. Under this system, priorities are assigned to each applicant based upon various claims of preference. The first priority is given to an applicant who qualifies for a "federal preference" as defined in 24 C.F.R. § 882.219. To qualify, an applicant must prove to be: (a) involuntarily displaced; (b) living in substandard housing; or (c) paying more than fifty (50) percent of gross family income toward rent and utilities. Proof of any one of the three factors noted yields a federal preference. Id.
According to HUD regulations, Belmont may incorporate other non-federal preferences, including the use of a "local preference," designed to rank applicants on the waiting list who are qualified for a federal preference. For example, Belmont may give precedence to those applicants who qualify for both a federal preference and a local preference over nonresident applicants who hold only federal preferences. See 24 C.F.R. § 882.2199(b)(1) & § 882.219(b)(2)(iii)(A). However, there are several limitations. Local residency preferences may not be based on the length of time an applicant has resided in the jurisdiction. An applicant who is working, or who has received notice to begin work in the local jurisdiction, must be treated as a resident. See 24 C.F.R. § 882.209(a)(4)(i).
Belmont gives local preference to any eligible applicant either living, working in, or intending to work in any of the 41 communities of the Erie County consortium. Belmont incorporates its local preference in accordance with the following priorities:
Priority 1: Applicants claiming both federal and
Priority 2: Applicants claiming federal preferences
Priority 3: Applicants claiming local preferences
Priority 4: Applicants claiming no preferences.
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