City of Lackawanna, NY v. Kennedy Park Homes Association Inc. Brief of Respondents in Opposition

    Ik t h e

(Emtrt nf %  ItutTii BMj>b
O ctober T erm , 1970 

No. 1319

C it y  of L ack aw an n a , N e w  Y ork , et al.,

vs.
Petitioner,

K en n edy  P ark  H omes A ssociation I ncorporated, C olored 
P eople ’s Civic and P olitical Organization , I n c ., J am es
M. T hom as , S am u el  M artin , T h e  D iocese op B uffalo ,
N. Y.,

Respondents,
U nited ' S tates of A merica ,

Intervenor-Respondent.

o n  p e t it io n  f o e  a  w r i t  of  c e r t io r a r i  to  t h e  
u n it e d  s t a t e s  c o u r t  o f  a p p e a l s  f o r  t h e  s e c o n d  c ir c u it

BRIEF OF RESPONDENTS KENNEDY PARK HOMES 
ASSOCIATION, COLORED PEOPLE’ S CIVIC 

AND POLITICAL ORGANIZATION, INC., 
JAMES M. THOMAS AND SAMUEL MARTIN 

IN OPPOSITION

J ack  Greenberg 
J ames M. N abrit  III 
J effry  A . M in t z  
M orris J . B aller

10 Columbus Circle 
New York, New York 10019

W ill  G ibson
110 Pearl Street 
Buffalo, New York 14202

Attorneys for Named Respondents



I N D E X

PAGE

Opinions B elow .........................................   1

Jurisdiction ........................     2

Questions Presented ..........................................................  2

Statement ..............................................................................  2

A. Facts ........................................................................  2

B. Proceedings Below ................................................  5

A rg u m e n t ...........................................................................................  8

Conclusion..............................    13

Table of A uthorities
Cases:

Arrington v. City of Fairfield, 414 F.2d 687 (5th Cir. 
1969) .................................................................................. 9

Berenyi v. District Director, Immigration Service, 385
TT.S. 630 (1967) ................................................................  9

Brown v. Board of Education, 349 U.S. 294 (1955) ..........  9

Dailey v. City of Lawton, 425 F.2d 1037 (10th Cir. 1970) 9

Gautreaux v. Chicago Housing Authority, - —- F.2d---- ,
(7th Cir. No. 18681, December 16, 1970) .....................9,11

Graver Tank & Mfg. Co. v. Linde Air Products Co., 336
U.S. 271 (1949) .....................................   9

Griffin v. School Board of Prince Edward County, 377 
U.S. 218 (1964) ................................................................9,11



11

PAGE

Hawkins v. Town of Shaw,------ F.2d ——  (5th Cir. No.
29013, January 28, 1971) ................................................  9

Hecht Company v. Bowles, 321 U.S. 321 (1944) ...........  11
Hunter v. Erickson, 393 H.S. 385 (1969) ........ ................  9

Kennedy Park Homes Association v. City of Lacka­
wanna, 318 F. Supp. 669 (W.D.N.Y. 1970) ............. passim

Kennedy Park Homes Association v. City of Lacka­
wanna, — - F .2 d ----  (2nd Cir. No. 35320, December
7, 1970) .................................. .......................................passim

Louisiana v. United States, 380 U.S. 145 (1965) ........ ..9,11

Meredith v. Winter Haven, 320 U.S. 228 (1943) ........... 11
Mills v. Electric Auto-Lite Co., 396 U.S. 376 (1970) ..... 11

Norwalk CORE v. Norwalk Redevelopment Authority,
395 F.2d 920 (2nd Cir. 1968) ........................................  9

Southern Alameda Spanish Speaking Organization v.
City of Union City, 424 F.2d 291 (9th Cir. 1970) .......  9

United States v. First National City Bank, 379 U.S.
378 (1965) ............................................... ..........................  11

United States v. Jefferson County Board of Education,
372 F.2d 836 (5th Cir. 1966), aff’d with modifications,
380 F.2d 385 (5th Cir. 1967), cert, denied, 389 U.S.
840 (1967) .......................................................................... 11

United States v. Yellow Cab Co., 338 U.S. 338 (1949) .... 9

Virginian Ry. Co. v. System Federation No. 40, 300 U.S.
515 (1937) ..........................................................................9,11

Zenith Radio Corp, v. Hazeltine Research, 395 U.S. 100 
(1969) 8-9



Ill

PAGE

Constitutional and Statutory Provisions:

United States Constitution, Fourteenth Amendment, 
Equal Protection Clause ......... ................................-.....  6

Civil Eights Act of 1870, 42 U.S.C. §1983 ....................... 6

Fair Housing Act of 1968, 42 U.S.C. §3601 ....................... 6



Iw  t h e

grnpfOT? (tart of %  Ilnitzb
O ctober T erm , 1970 

No. 1319

C ity  of L ack aw an n a , N ew  Y ork , et al.,
Petitioner,

vs.

K en n edy  P ark  H omes A ssociation I ncorporated, C olored 
P eople ’s C ivic and P olitical O rganization , I n c ., J ames
M. T hom as , S am uel  M artin , T h e  D iocese of B uffalo ,
N. Y.,

Respondents,
U nited S tates of A merica ,

Intervenor-Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF OF RESPONDENTS KENNEDY PARK HOMES 
ASSOCIATION, COLORED PEOPLE’ S CIVIC 

AND POLITICAL ORGANIZATION, INC., 
JAMES M. THOMAS AND SAMUEL MARTIN 

IN OPPOSITION

Opinions Below

The decision and order of the United States District 
Court for the Northern District of New York (Pet. App. 
33-93) is reported at 318 F. Snpp. 669. The decision of 
the United States Court of Appeals for the Second Circuit 
(Pet. App. 17-32) is not yet reported.



2

Jurisdiction

The judgment of the Court of Appeals was entered on 
December 7, 1970. The petition for a writ of certiorari 
was filed on February 5, 1971. The jurisdiction of the 
court is invoked under 28 U.S.C. §1254(1).

Questions Presented

1. Are the concurrent findings of fact of the courts below 
that the respondents engaged in intentional racial discrim­
ination clearly erroneous?

2. On the facts as found below, were the respondents 
entitled to judicial relief?

3. Was the decree issued by the District Court and 
affirmed by the Court of Appeals appropriate?

Statement
A. Facts

This case arises out of an effort by respondent Colored 
People’s Civic and Political Organization (CPCPO), a 
group of black citizens residing in a ghetto area of the 
First Ward of the City of Lackawanna, New York, to 
construct homes in a nearly all-white area of the City. 
Early in 1968 CPCPO began to act with determination to 
seek new housing away from the deteriorating and over­
crowded First Ward to which Negroes had been tradi­
tionally confined. (Pet. App. 66-69, 85-86, 318 F. Supp. 685- 
686, 694-695.) It formed respondent Kennedy Park Homes 
Association (KPH A), a non-profit housing corporation, 
and obtained a commitment from co-respondent Diocese of 
Buffalo to purchase 30 acres of vacant land owned by the



3

Diocese in the City’s nearly all-white Third Ward for a 
subdivision of low-cost homes. KPHA then secured Fed­
eral Housing Administration approval for the federal 
mortagage assistance. Shortly thereafter, responding to 
pressure from its white citizens, the City began a continu­
ing campaign to block the subdivision. (Pet, App. 68-77, 
318 F. Supp. 686-690.) These actions can be better under­
stood when considered against the background of housing 
conditions in and land use policies of the City.

Both courts below found flagrant, racially distinguish­
able disparities between the housing opportunities avail­
able to the City’s white and black citizens respectively. 
(District Court: Pet. App. 40-44, 318 F. Supp. 674-675; 
Court of Appeals: Pet. App. 19-21.) First, Lackawanna’s 
residential neighborhoods are rigidly segregated.1 2 The 
First Ward, in which nearly all Lackawanna’s black resi­
dents are confined, is physically separated from the re­
mainder of Lackawanna by railroad tracks crossed by a 
single bridge. (Pet. App. 40-41, 318 F. Supp. 674.) Second, 
the First Ward offers by far the least desirable living 
conditions among Lackawanna’s different areas. Its hous­
ing stock is old, crowded, and substandard; its health and 
crime statistics are the City’s worst. (Pet. App. 43, 318 
F. Supp. 675.)3 Third, private discrimination has pre­
vented blacks from escaping deplorable First Ward condi­

1 Of the City’s 2,693 non-white residents, 98.9% lived in the 
First Ward in 1966. (Pet. App. 41, 318 F. Supp. 674.) The con­
centration of non-whites in the First Ward is increasing. (Id.) 
Only one non-white was found among the 8,974 Second Ward resi­
dents. (Id.) There were 29 non-whites (0.2%) in the 1966 Third 
Ward population of 12,229. (Id.)

2 The quality of the First Ward environment is further dimin­
ished by the immense Bethlehem Steel works, including blast fur­
naces and open hearths, which occupy the northern half of the 
Ward—the area adjacent to the black ghetto. (Pet. App. 41-42, 
318 F. Supp. 674-675.)



4

tions by barring them from housing in the Third Ward, the 
only area where any significant new residential construc­
tion or other housing opportunities have occurred in recent 
years. Contractors, homeowners, realtors, and subdividers 
have all participated in such private discrimination, which 
has been well known to City officials. (Pet. App. 85, 318 
F. Supp. 694.)

All parties concede that the City has a serious sewage 
problem resulting from grossly inadequate sewer and sew­
age treatment facilities. The City has been aware of the 
problem for many years, but has completely disregarded 
nearly all recommendations as to solutions of the problem, 
has failed to execute recommended studies, and prior to 
1968 had made no effort to limit the use of the already 
overtaxed system. (Pet. App. 55-57, 318 F. Supp. 680- 
681.)3 Nevertheless, the “ sewer crisis” has been and re­
mains the major purported justification for the City’s 
efforts to prevent the KPHA subdivision.

A second excuse raised by petitioners is the need for 
park land. Lackawanna has devoted some attention to the 
selection of a proposed park and recreation site. Follow­
ing recommendations of a retained consultant, the City 
adopted and included in its Master Plan a proposed site 
which was wholly located to the west of the site later ac­
quired by KPH A from the Diocese—notwithstanding peti­
tioners’ contention that the proposed park site and the 
KPHA site overlapped. (Pet. App. 51, 86-87, 318 F. Supp.

3 In spite of the claimed “sewer crisis,” the City has since 1963 
approved at least nine new subdivisions and hundreds of indi­
vidual homes in the Third Ward feeding into the same sewers. 
(Pet. App. 56, 59-60, 318 F. Supp. 680-681, 682-683.) Even after 
adopting a supposedly general subdivision moratorium (directed 
mainly at KPHA, Pet. App. 86, 318 F. Supp. 695), the City per­
mitted substantial construction to continue. (Pet. App. 80, 318 
F. Supp. 692.)



5

679, 695.) Prior to acquisition by KPHA, its site bad been 
shown on all plans and maps, including the zoning code, 
as designated for residential use. (Id.)

Against this backdrop, when KPH A’s plans became known 
in 1968, a swift reaction followed. Following intensive pro­
tests against K PH A’s plans by concerned “ citizens’ groups” , 
the City’s Planning and Development Board recommended 
rezoning the KPHA site for park and recreation use and 
imposing a moratorium on all new subdivisions. The City 
Council on October 21,1968, adopted these recommendations 
as City ordinances. At a subsequent meeting the Council 
voted a resolution setting forth findings of fact and reasons 
for its two ordinances. The district court found these find­
ings and reasons in various degrees to be rationalizations, 
or demonstrably false. (Pet. App. 86-87, 318 F. Supp. 695.)

After this action had been filed, the Council rescinded the 
two ordinances, leaving intact a prior resolution directing 
City officials to acquire the KPHA site as a park tract. 
However, the Mayor continued to refuse to sign the au­
thorization to permit the subdivision to tie into the munici­
pal sewer system (the “ Sanitary 5” form), an essential 
prerequisite without which construction could not com­
mence.4 *

B. Proceedings Below

The instant respondents and the Diocese of Buffalo 
brought this action on December 2, 1968. The United States 
was permitted to intervene as a plaintiff on February 5, 
1969. Their complaints alleged that petitioners’ actions 
violated the rights of racial minorities and persons of low

4 This form was finally signed and submitted to the county health 
department only after the denial of a stay of the decree by the
Court of Appeals and by Mr. Justice Harlan.



6

income tinder the Equal Protection Clause of the Four­
teenth Amendment, the Civil Rights Act of 1870 (42 U.S.C. 
§1983), and the Fair Housing Act of 1968 (42 U.S.C. §3601 
et seq.) to equal access to housing. Both parties sought in­
junctive relief against the discriminatory acts of petitioners.

Following extensive pre-trial proceedings and discovery, 
a trial on the merits began in the district court on April 9, 
1970, lasting 22 trial days. Thirty-two witnesses testified, 
and 27 depositions and 360 exhibits were entered into the 
record. Further oral argument was heard on July 10, 1970. 
On the basis of the extensive record and the parties’ briefs, 
the district court handed down detailed findings of fact and 
conclusions of law. (Pet. App. 33-93, 318 F. Supp. 669.)

The district court opinion of August 13, 1970 system­
atically refuted every major factual contention, explana­
tion, or justification advanced by petitioners. The court 
dismissed the City’s justifications, which are renewed in 
the present petition, as unconvincing rationalizations for 
racially motivated conduct.6 In summarizing its findings 
the court held:

6 “ The defendants . . . have never attempted to find out whether 
it was possible to deal with the sewer problems and park needs 
without infringing upon plaintiffs’ rights. There were alternative 
courses of action which could have been taken in regard to both 
of these problems, which would have solved the City’s needs and 
not impaired the rights of the plaintiffs.

There was no justification for rezoning this land for park pur­
poses. The planning and development Board had designated it for 
residential use. No one recommended that it be used for park 
purposes either before or after the enactment of the ordinance . . .

The sewer problem did not justify the action taken by the Coun­
cil in enacting the ordinance, or by the Mayor in refusing to sign 
the Sanitary 5 form. . . . [T]he enactment of the subdivision 
moratorium was not necessary or compelling and, in fact, could 
not solve the sewer problem. . . .

Many Third Ward and other residents have complained about 
the sewers for at least the last ten years. Nevertheless, during this 
period, the City continued to issue subdivision and building per­



7

Therefore, considering all of the evidence and espe­
cially the actions of the City in 1968 and 1969 in their 
historical context . . . [ajffirmative acts were taken 
under color of law to inhibit plaintiffs’ constitutional 
and statutory rights.

(Pet. App. 87, 318 F. Supp. 695.)

In addition to finding petitioners guilty of a “ wilful con­
trivance to deprive plaintiffs of their housing rights,” the 
court also held that defendants had breached their affirma­
tive duty to plan for the protection of plaintiffs’ housing 
rights. (Pet. App. 88-90, 318 F. Supp. 696-697.) The court 
thereupon issued the nine-part order set forth verbatim 
in the Petition for Certiorari (pp. 5-6). In substance, the 
order required the city to cease its efforts to block the sub­
division and to take all necessary steps to permit it to 
proceed.

Petitioners filed notice of appeal on August 17, 1970, 
and on September 3, 1970, obtained a stay of the order, on 
the strict condition that the appeal be expedited. The appeal 
was argued October 14,1970, and the opinion by Mr. Justice 
Clark for a unanimous court was issued December 7, 1970. 
The Court of Appeals reviewed and explicitly affirmed the 
findings of fact made below. It held that those findings were 
“ fully supported by the record and lead inescapably to the 
conclusion that racial motivation resulting in invidious 
discrimination guided the actions of the City.” (Pet. App. 
19.) After reviewing “the mosaic of Lackawanna’s dis­
crimination,” the court concluded:

mits without facing up to a satisfactory solution to the sewer prob­
lem. Defendant’s lack of attention not only deprived the plain­
tiffs of an opportunity for housing, but all Lackawanna residents 
of an efficient sewer system.” (Pet. App. 88-89, 318 F. Supp. 696.)



8

This panoply of events indicates state action amount­
ing to specific authorization and continuous encourage­
ment of racial discrimination, if not almost complete 
racial segregation.

(Pet. App. 28.) The Court expressly concurred in the 
lower court’s dismissal of the City’s sewer and park justifi­
cations. (Pet. App. 27-29.) The court approved the remedy 
below, noting that the particular manner in which the City 
should be compelled to afford plaintiffs relief was for the 
district court to determine, and referring the city’s re­
quests for modification to it. (Pet. App. 30.)

Petitioners sought stays of the decree pending certiorari 
which were denied by the Court of Appeals on January 13, 
1971, and by Mr. Justice Harlan on January 26, 1971. The 
petition for certiorari was filed on February 5, 1971.

ARGUMENT

Although petitioners appear to have abandoned a direct 
attack on the findings of fact and legal conclusions of the 
lower courts, their challenge to the remedy in essence invites 
this Court to disregard the factual and legal basis on which 
the decree rests. The attitude petitioners urge with re­
spect to these findings and conclusions is clearly inappropri­
ate.

1. The meticulously documented and detailed findings of 
the district court were based on a voluminous record, care­
fully studied. In affirming these findings, the appeals court 
found them not merely not “ clearly erroneous” (Pet. App. 
25-26), but fully supported by the record. (Pet. App. 19.)

In these circumstances this Court should not undertake 
to review the factual findings made below, Zenith Radio



9

Corp. v. Haseltine Research, 395 U.S. 100, 123 (1969), par­
ticularly since the issues involved the design or motivation 
of actions, United States v. Yellow Cah Co., 338 U.S. 338, 
341 (1949). Where the appellate court has affirmatively 
concurred in the findings of the trier of the fact, such re­
view is particularly inappropriate, Virginian Ry. Co. v. 
System Federation No. 40, 300 U.S. 515, 542 (1937); Graver 
Tank & Mfg. Co. v. Linde Air Products Co., 336 U.S. 271, 
275 (1949); Berenyi v. District Director, Immigration Ser­
vice, 385 U.S. 630, 635 (1967).

2. In light of these findings, it is apparent that no novel 
or important questions of law are presented. This Court 
has granted injunctions and affirmative relief against inten­
tional acts of racial discrimination by governmental units 
or officials on innumerable occasions, and there can no longer 
be any question as to the propriety of judicial relief for such 
actions. See, e.g. Brown v. Board of Education, 349 U.S. 
294 (1955); Griffin v. School Board of Prince Edward 
County, 377 U.S. 218 (1964); Louisiana v. United States, 
380 U.S. 145 (1965). Nor is there any conflict among the 
Circuits regarding the illegality of intentional discrimina­
tion which deprives racial minorities of equal housing op­
portunities. See, e.g., Dailey v. City of Lawton, 425 F.2d 
1037 (10th Cir. 1970); Southern Alameda Spanish Speak­
ing Organization v. City of Union City, 424 F.2d 291 (9th 
Cir. 1970); Gautreaux v. Chicago Housing Authority, 
- —  F .2 d ------  (7th Cir. No. 18681, Dec. 16, 1970); cf. Ar­
rington v. City of Fairfield, 414 F.2d 687 (5th Cir. 1969); 
Norwalk CORE v. Norwalk Redevelopment Agency, 395 
F.2d 920 (2nd Cir. 1968).6

6 Where the effect of governmental aetion is to deny equal op­
portunities to minority groups, it has been held that it is not 
necessary, as was done here, to find a discriminatory motive.
Hawkins v. Town of Shaw, ------- F.2d ------- (5th Cir. No. 29013,
January 28, 1971) ; Hunter v. Erickson, 393 U.S. 385 (1969).



10

3. Petitioners’ principal grounds amount to an enumera­
tion of the sweeping provisions of the district court’s rem­
edy, coupled with fearful prophesies of its possible conse­
quences. Petitioners both exaggerate and distort the 
district court’s decree when they claim it authorizes the 
court “virtually taking over and running a City” (Pet. 6) 
and “to administer the City’s affairs rather than its elected 
officials.” (Pet. 6.) The City need only remove the stumbling 
block which it has discriminatorily raised against KPHA 
alone, by executing the necessary “ Sanitary 5” form author­
izing a sewer connection, and forwarding it to the county 
health department for competent review.7 Petitioners ex­
press alarm about the injunction against issuance of any 
further building permits in the Second or Third Wards 
which would feed into the municipal sewage system until 
KPHA is allowed to tap into the sewer system. (Pet. 6-13). 
Yet this injunction does no more than require the City to 
fulfill its existing obligations on a non-discriminatory 
basis.8

We submit that the district court’s decree is entirely 
proper and within its equitable powers. It is well estab­
lished that the formulation of a decree by a court of equity 
will not be disturbed absent a clear abuse of the chancellor’s

7 Only if the County disapproves the executed form need peti­
tioners “take whatever action is necessary to provide adequate 
sewage service to the KPHA subdivision.” (Pet. App. 91.) If 
needed, the development of an adequate sewer system will benefit 
all residents of the Third Ward, black and white alike.

8 Lackawanna has always had a duty to provide adequate sewage 
facilities for the Third Ward. To attribute this obligation to the 
district court’s decree would appear to compound past dereliction 
of duty by present denial of the municipality’s raison d’etre. The 
court’s decree leaves the method of resolving the “sewer crisis” 
appropriately in the hands of city officials. The injunction against 
further building pending steps toward resolution of the difficulty 
simply applies petitioners’ concern about the sewers to all poten­
tial builders, black and white alike.



11

broad discretion,9 particularly when the decree is designed 
to further the public interest rather than a purely private 
claim.10 The necessity for judicial intervention is particu­
larly appropriate where a history of intentional racial dis­
crimination exists. The Courts below followed the rule of 
Louisiana v. United States, 380 U.S. 145,154 (1965), that:

The court has not merely the power but the duty to 
render a decree which will so far as possible eliminate 
the discriminatory effects of the past as well as bar 
like discrimination in the future.

In this light, the decree goes beyond neither what seems 
reasonably necessary in light of the petitioners’ clearly dis­
criminatory intent and their continuing intransigence, as 
shown by the facts, nor the scope of decrees in analogous 
cases.11

Even if the decree is open to some challenge or modifica­
tion, this Court is not the proper forum. The district 
court’s order specifically directed petitioners to report to 
it on the progress and problems of K PH A’s sewage ser­
vices, and retained continuing jurisdiction over the matter. 
(Pet. App. 92, 318 F. Supp. at 698.) The appeals court di­
rected that requests for modification should be addressed 
in the first instance to the district court. (Pet. App. 19, 30.)

9 See, e.g., Mills v. Electric Auto-Lite Co., 396 U.S. 376, 386 
(1970); IIedit Company v. Bowles, 321 U.S. 321, 329 (1944);, 
Meredith v. Winter Haven, 320 U.S. 228, 235 (1943).

10 United States v. First National City Bank, 379 U.S. 378, 383 
(1965); Virginia By. Co. v. System Federation, supra at 552. Cf. 
Griffin v. School Board of Prince Edward County, supra, at 233- 
234.

11 See, e.g., Griffin v. Prince Edward County School Board, supra; 
United States v. Jefferson County Board of Education, 372 F.2d 
836 (5th Cir. 1966), aff’d with modifications 380 F.2d 385 (5th 
Cir. 1967), cert, denied 389 U.S. 840 (196..); Gautreaux v. Chicago 
Housing Authority, supra.



12

We also would note that the great complexity of the evi­
dence and the care and diligence wTith which the district 
court has already inquired into these problems render the 
district court particularly qualified to consider the pro­
priety of its decree in specific factual circumstances as they 
may develop. Indeed, respondents respectfully suggest that 
this Court could not properly evaluate petitioners’ spectres 
and contentions composed exclusively of hypothetical future 
eventualities. Further evidentiary hearings are available, if 
needed, under the decree for Lackawanna to produce real 
evidence in support of the possibilities it raises in the peti­
tion. The district court will remain available to consider 
petitioners’ assertions, which as of now are still unfounded.



13

CONCLUSION

For the foregoing reasons, the petition for a writ of 
certiorari should be denied.

Respondents further request the Court to expedite con­
sideration of this case for the following reasons: While 
preliminary matters involved in the proposed development 
are now proceeding, KPHA will be unable to obtain financ­
ing for construction while this litigation is pending. The 
City is of course entitled to the full consideration in this 
Court of the issues raised in its petition. However, the re­
spondents’ efforts to obtain decent housing have now been 
delayed two years by actions found by the lower courts to 
have been discriminatorily motivated. The realities of the 
short construction season in nothern New York will mean 
possibly another year’s delay unless consideration is 
expedited.

Respectfully submitted,

J ack  Greenberg 
J ames M. N abrit III 
J effry  A. M in t z  
M orris J . B ailer ,

10 Columbus Circle 
New York, New York 10019

W il l  G ibson
110 Pearl Street 
Buffalo, New York 14202

Attorneys for Named Respondents



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