English v. Town of Huntington Brief for Appellants

    In The
UNITED STATES COURT OF APPEALS 

For The Second Circuit 
No. 71-1552

ALDENA ENGLISH, et al.,
And

HUNTINGTON TOWNSHIP COMMITTEE 
ON HUMAN RELATIONS,

Plaintiffs-Appellants,
-vs-

TOWN OF HUNTINGTON, et al.,
Defendants-Appellees.

On Appeal From The United States District Court 
For The Eastern District of New York

BRIEF FOR APPELLANTS

JACK GREENBERG 
JONATHAN SHAPIRO 
MORRIS J. BALLER 

10 Columbus Circle 
New York, New York 10019

SAM R. RASKIN 
34 Dewey Street 
Huntington, New York 11743

Attorneys for Plaintiffs-Appellants

* «

j,



I N D E X

Preliminary Statement ................................ i
Issues Presented for Review .......................... 1

Page

Statement of the Case ................................ 3
Statement of Facts ................................... 6
Argument .....................................  13

I . The Displacement From Their Homes of 
Black and Puerto Rican Residents 
of Huntington As A Result of Code 
Enforcement Violates The Equal 
Protection Clause of The Fourteenth 
Amendment When The Displacees Are 
Unable To Relocate Within The Com­
munity Largely Because of Their Race ...... 13

II.

s

The Displacement of Persons From Their 
Homes By Code Enforcement In The Absence 
of Any Relocation Housing Constitutes 
An Arbitrary Exercise of The Police Power 
Which Violates The Rights of The Dis­
placees, Protected By The Due Process 
Clause of the Fourteenth Amendment, Not To Be Deprived of the Only Housing That 
is Available To Them In The Community 
in Which They Live ........................  26

III. The Code Enforcement Proceedings Should
Be Enjoined Because The Displacement of
The Tenants From Huntington Is a Direct
Consequence of the Town's Failure to
Adequately Relocate the Displacees From
the Urban Renewal Area in Violation of
42 U.S .C. § 1455 (c)........................ 32

IV. The District Court Erred In Denying Injunctive 
Relief On The Ground That The Prospective 
Displacees Are Not Members Of The Class 
Which Plaintiffs Represent ................ 39

Conclusion



Table of Cases
Adkins v. Children's Hospital, 261 U.S. 525

(1923) .................................. • 31

1 1

Page

Arrington v. City of Fairfield, 414 F.2d 687(5th Cir. 1969) .......................... 17, 24
Buchanai v. Warley, 345 U.S. 60 (1917) ........ 28
Build of Buffalo, Inc. v. Sedita, F.2d

(2d Cir. No. 34886, April 13, 1971) ...... 41
Burton v. Wilmington Parking Authority, 365

U.S. 715 (1961) .......................... 15
Carr v. Conoco Plastics, Inc., 423 F.2d 57

(5th Cir. 1970) .......................... 41
Clark v. Romney, 321 F. Supp. 458 (S.D. N.Y.(1970) ................................... 38
Clearfield Trust Co. v. United States, 318 U.S. 363 (1943) .................... ....... 36
Edwards v. California, 314 U.S. 160 (1941) .... 29
Fitzgerald v. Pan American World Airways, 229 

F. 2d 499 (2d Cir. 1956) .................. 36
Garrett v. City of Hamtramck, F. Supp. , 

(CCH Pov. L. Rep. f 9994 (E.D. Mich No. 
32004, March 7, 1969) .................... 19, 35

Goldblatt v. Town of Hempstead, 369 U.S. 590(1962) ................................26, 27, 28, 29
Gomex v. Florida State Employment Service, 417 

F.2d 569 (5th Cir. 1969) .................. 37
Gomillion v. Lightfoot, 364 U.S. 339 (1960)....14, 24, 29
Hawkins v. Town of Shaw, 437 F.2d 1286 (5th Cir. 

1971) ..................................... 15, 14
Hunter v. Erickson, 393 U.S. 389 (1969) ....... 16
J. I. Case Co. v. Borak, 377 U.S. 426 (1964) ... 36
Johnson v. Georgia Highway Express, 417 F.2d

1122 (5th Cir. 1969) ...................... 41
*



ill

Kennedy Parks Homes Ass'n v. City of 
Lackawanna, 436 F.2d 108 (2d Cir, 1970), cert, denied, 28 L.Ed.2d 546 (April 6,1971) ........................14,15,17,19,20,22,24,28
Lockner v. New York, 198 U.S. 45 (1905) ..........  31
Monroe v. Pape, 365 U.S. 167 (1961) ..............  14
Norwalk CORE v. David Katz & Sons, Inc., 410

F. 2d 532 (2d Cir. 1969) .......................  38
Norwalk CORE v. Norwalk Redevelopment Agency,

395 F . 2 d 920 (2d Cir. 1968)......... 15,17,23,29,35,40
Palmer v. Thompson, ___ U.S. ___, 39 L.W. 4759(June 14, 1971) ............................... 14, 20
Powelton Civic Home Owners Ass'n v. Department of Housing and Urban Development, 284 F. Supp.

809 (E.D. Pa. 1968) ...........................  35
Reitmeister v. Reitmeister, 162 F.2d 791 (2d Cir.

1947)   36
Reitman v. Mulkey, 387 U.S. 369 (1967) ........... 16, 28
Shannon v. Department of Housing and Urban

Development, 436 F.2d 809 (3rd Cir. 1970) .....35, 36
Shapiro v. Thompson, 394 U.S. 618 (1969)...... 22,24,29,31
Shelley v. Kraemer, 334 U.S. 1 (1948) ............ 28
Smith v. Texas, 311 U.S. 128 (1940) ..............  14
Southern Alameda Spanish Speaking Organization v.
City of Union City, 424 F.2d 291 (9th Cir. 1970) ...15, 40
Taussig v. Wellington, Inc., 313 F.2d 472 (3rdCir. 1963)   36
T. B. Harms Company v. Eliscu, 399 F.2d 823 (2d

Cir. 1964)   36
Tunstall v . Brotherhood of Locomotive F. & E.,

323 U.S. 210 (1944)   36
Western Addition Community Organization v. Weaver,

294 F.Supp. 433 (N.D. Cal. 1968)   35

Page



XV

Page
Whirl v. Kern, 407 F.2d 787 (5th Cir. 1969)..... 14
Yick Wo v. Hopkins, 118 U.S. 3 56 (1886) ........  14

Statutes
Uniform Relocation Assistance and Land Acquisition Policies Act of 1970, Public Law 91-646, 91st Cong.S. 1, 84 Stat. 1894 .............................  29
Federal Rules of Appellate Procedure Rule 8 (a).... 6
United States Census of Housing and Population,1970 ............................................  7
United States Code Congr. Service, 81st Cong.,1st Sess., pp. 1555-1561 (1949) .................. 35
United States Code:

12 U.S.C. § 1701(h)(i)(d) (Cum. Supp. 1971)___ 2242 U.S.C. § 1423 .............................. 21
42 U.S.C. § 1451(c)   29
42 U.S.C. § 1455 (Cum. Supp. 1971)___2,29,34,35,37

Urban Renewal Handbook,RHA 7100.1 ...............  29



In The
UNITED STATES COURT OF APPEALS 

For The Second Circuit 
No. 71-1552

ALDENA ENGLISH, et al.,And
HUNTINGTON TOWNSHIP COMMITTEE 

ON HUMAN RELATIONS,
Plaintiff s-Appe Hants

-vs-
TOWN OF HUNTINGTON, et al.,

Defendants-Appellees

On Appeal From The United States District Court 
For The Eastern District of New York

BRIEF FOR APPELLANTS

Preliminary Statement

This is an appeal from an order denying a motion for a pre­
liminary injunction entered on May 13, 1971 by the Honorable 
Anthony J. Travia, United States District Judge for the Eastern 
District of New York. The order is unreported and is reproduced 
at page 245a of the Appendix.

Issues Presented For Review
1. Whether the displacement from their homes of low income 

black and Puerto Rican residents by a municipality as a result 
of the enforcement of a municipal zoning ordinance should be



enjoined as a violation of the Equal Protection Clause of the 
Fourteenth Amemdment when the displacees will be forced to 
leave the community largely because of racial discrimination 
in the private housing market?

2. Whether code enforcement proceedings which displace 
persons from their homes when no relocation housing is available 
violate the rights of displacees, protected by the Due Process 
Clause of the Fourteenth Amendment, not to be deprived of the 
only housing available to them in the community in which they 
live?

3. Whether the code enforcement proceedings should also be 
enjoined because the displacement is a direct consequence of 
Town's failure to adequately relocate the displacees from the 
urban renewal area in violation of 42 U.S.C. § 1455(c)?

4. Whether the district court erred in holding that the low 
income black and Puerto Rican tenants of the houses against which 
the Town of Huntington is proceeding with code enforcement actions 
are not members of the class which plaintiffs represent?

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Statement of the Case

On February 7, 1969, plaintiffs-appellants (the 
"plaintiffs") filed this action in the United States 
District Court for the Eastern District of New York 
seeking injunctive and declaratory relief against var­
ious officials of the Town of Huntington, New York 
(the "local defendants") and against the Secretary and 
Regional Administrator of the United States Department 
of Housing and Urban Development (the "federal defendants").
It was brought as a class action on behalf of all of the 
"black and Puerto Rican residents of the Town who are being 
and have been deprived of their rights to equal housing op­
portunities" (A. 3a). Plaintiffs seek generally to require 
the local defendants to take affirmative steps to remedy 
the discriminatory effects upon the low-income minority
group residents of Huntington of the housing policies of

1/the Town, and to enjoin both the local and federal defendants 
from continuing to take action which had created and was

1/ The prayer for relief includes a request that the local 
defendants be directed to construct additional units of 
low-rent housing in Huntington and that the Town's zon­
ing ordinance be declared unconstitutional to the extent 
that it bars the construction of multiple dwelling houses 
or inexpensive single family houses (A. 16a).

-3-



exacerbating the hardships imposed upon nonwhites.
Specifically, plaintiffs sought to enjoin the dis­

placement without adequate relocation of members of their 
class from the site of an urban renewal project financed 
by the federal defendants and to require the construction 
in the urban renewal area of a number of dwelling units 
available to low-income minority groups that was at least 
equal to the number of units destroyed by the project 
(A. 10a, 16a). They also sought to enjoin any code en­
forcement actions by the Town which would result in the dis­
placement of members of plaintiffs' class from their homes 
unless adequate relocation housing was provided in Huntington 
(A. 12a-13a) .

On July 2, 1970, the district court denied motions to 
dismiss filed by both the local and the federal defendants. 
The court held that it had subject matter and personal jur­
isdiction with respect to all defendants, that the complaint 
sufficiently stated claims for relief, and that the suit was 
properly maintainable as a class action (A. 45a-63a)

On November 20, 1970, plaintiffs moved for a preliminary

2/ See 42 U.S.C. § 1455 (Cum. Supp. 1971). Subsequent to 
the filing of this action, the local defendants amended 
the urban renewal plan in such a way as to double the 
number of apartments that would be available to low- 
income tenants in the urban renewal project area. Al­
though construction of these apartments was scheduled to begin in the Spring of 1970, no work has yet begun 
(Local Defendants' Answer to Interrogatory No. 15, p.10, dated October 6, 1969).

-4-



injunction to enjoin local defendants from commencing code 
enforcement proceedings in state court against a number of 
homes in a ghetto area of the town (A. 63a). Plaintiffs 
contended that these proceedings would result in the dis­
placement from their homes of many low-income black and 
Puerto Rican residents who, because of the unavailability 
of any relocation housing in Huntington, would be forced out 
of the community (A. 67a). At a hearing held on November 
24th, the local defendants acknowledged that they intended to 
commence suits to enjoin violations of the Town's zoning or­
dinance caused by overcrowding in four single-family houses 
in a section of Huntington known as Greenlawn (A. 120a, 124a, 
182a). They admitted that their action would result in the 
eviction from their homes of seventeen families; they did not 
dispute plaintiffs' showing that all of these persons were 
low-income black or Puerto Rican residents who would be com­
pletely unable to relocate in Huntington (A. 119a-126a); and 
they disclaimed any responsibility for assisting these fami­
lies to relocate within the town (A. 86a).

The district court denied plaintiffs' motion from the
1/

bench on April 23, 1971. The court did not make any findings

3/ it apparently concluded that only displacees from the urban 
renewal area could properly be considered members of plain­
tiffs ' class on whose behalf plaintiffs were entitled to 
challenge the Town's action (A. 216a-217a, 232a). Conse­
quently, solely upon the basis of the Town's representation that none of the tenants of the four houses had previously 
resided in the urban renewal areas, it summarily denied 
plaintiffs motion (A. 236a). The local defendants had agreed 
not to commence the code enforcement actions during the period from November 24, 1970 to April 23, 1971. At the November

-5-



of fact nor did it issue any opinion explaining its ruling.
In the colloquy with counsel during the hearing, however, 
the court indicated that it believed that only persons who 
had been displaced from the urban renewal area and relocated 
in the first instance by the Town in one of the overcrowded 
houses against which the Town was proceeding would be en­
titled to relief (A. 2l5a-218a).

An order denying the motion was entered on May 13, 1971 
(A. 245a) and plaintiffs filed their notice of appeal on May 
18th (A. 246a) . On May 21st, the district court denied a 
motion, pursuant to Rule 8 (a) of the Federal Rules of Appellate 
Procedure,for an injunction pending appeal (A. 247a). By no­
tice of motion dated June 4, 1971, plaintiffs sought an in­
junction pending appeal and an expedited appeal in this Court. 
This Court issued an injunction pending appeal on June 16th 
and scheduled argument on the merits for the week of July 
12th (A. 266a) .

Statement of Facts
The Town of Huntington is located in Suffolk County,

New York, and comprises roughly the northwest quarter of 
that county in area. According to the 1970 census, its 
present population is 200,588, of which 194,540, or 97%, is

3/ (Cont'd)
24th hearing, the court had requested that the defendants 
provide certain information and suggested that they delay their action until he had ruled (A. 192a-196a). Although 
this information was to be provided within several days, 
the defendants did not file their affidavit containing it until April 13, 1971 (A. 199a).

-6-



white and 6,048, or 3%, is nonwhite. During the last 
decade, Huntington has undergone a rapid, if not phenon- 
menal, population explosion. The growth of the metropol­
itan area suburbs, improved transportation and the location 
of industry and jobs all have contributed to ar. almost 60% 
increase over the 1960 population of 126,221. At the same 
time the nonwhite population increased at even a greater 
rate so that at present it represents a 110% increase over 
the 1960 population of 2875.

Against the background of this dramatic population 
growth and widespread racial discrimination in the private 
housing markets, the policies of the local defendants have 
resulted in the development of racial ghettos in the town 
where much of Huntington's nonwhite population is forced 
to live in overcrowded, detriorating housing units. Siice 
this is the only housing readily available to nonwhites, 
their displacement from their homes is tantamount to dis­
placement from Huntington altogether.

There can be no question that racial discrimination in 
Huntington has severely limited the housing that is open to 
blacks and Puerto Ricans. The district court noted the 
existence of such widespread discrimination (A. 50a) and 
the Town Housing Authority, one of the local defendants, has

4/ These figures are based on the first count of the 1970 
United States Census of Housing and Population.

-7-



recognized that racial discrimination is in large part 
responsible for the creation of ghettos in Huntington 
(A. 77a). The full effect of this discrimination on the 
housing opportunities of minority group residents is shown 
by the census figures. According to the special 1967 cen­
sus, 81.1% of all nonwhites in Huntington lived in six out 
of the total of twenty-seven census tracts. And between 
1960 and 1967, the nonwhite population outside of these 
six tracts increased by only seven persons (A. 251a).

In light of the special difficulties which nonwhites 
face in obtaining housing, it is evident that any govern­
mental action which limits or reduces the total housing 
supply will bear most harshly upon them. Yet, since 1960 
the Town has demolished through code enforcement and urban 
renewal approximately 700 dwelling units that were among 
the most accessible to nonwhites (A. 103a). The largest 
single factor in these demolitions was the Huntington 
Station Urban Renewal Project which displaced over 240 
households, approximately 75% of which were black and Puerto 
Rican (A. 103a).

The Town has done almost nothing, furthermore, to re­
place the housing that it has destroyed. In 1967 it con­
structed a total of only forty units of public housing, a 
number that was even insufficient to accommodate the eighty- 
seven households displaced by urban renewal who were eligible 
for public housing (A. 102a,103a). On the contrary, the 
Town's policies have provided a substantial obstacle to the

-8-



provision, by the public or private sector, of new housing 
that would benefit low—income minority group residents. It 
has refused to approve a proposal by the Housing Authority 
for the immediate construction of at least one hundred fed- 
erally-financed public housing units (A. 67a-68a). It has 
also continued since 1960 a moratorium on the construction 
of multiple dwelling homes, despite the recommendation in 
1964 by its own planning consultants that it amend its zon­
ing laws so as to permit the construction of at least 3000 
additional apartments by 1980. As a result, 16,424 of the
privately built housing units since 1960 have been single

6/family homes and 189 have been two family homes. The rapid 
use of vacant land in this way will soon make it impossible, 
under present zoning restrictions, to construct enough housing 
to eliminate the shortage (A. 74a).

The actions of the Town in reducing the housing supply 
available to the rapidly expanding black and Puerto Rican 
population in a housing market pervaded by racial discrimina­
tion and in preventing its replacement has had the inevitable 
effect of creating racial ghettos of overcrowded, substandard 
housing (A. 68a-69a, 98a, 102a, 251a). As early as 1960, 
in the three census tracts containing the largest nonwhite

5/ The Housing Authority requested approval for the construct­
ion of sixty units of public housing as early as 1967 (A. 
105a). A program reservation of funds of these units made 
by HUD was cancelled in 1969 because of the unwillingness 
of the Town to enter into the necessary cooperation agree­ment (A. 74a).

6/ The average price of a single family home is over $30,000. (A. 73a).

-9-



population, there were almost four times as many dilapi­
dated and deteriorating housing units as in the town as 
a whole (A. 251a-252a). The staff of the Nassau-Suffolk 
Regional Planning Commission recently estimated that one 
thousand publicly-assisted housing units would be nec­
essary just to relocate households living in overcrowded 
homes in Huntington (A. 85a). The Housing Authority has 
itself recognized the need for the construction of 1400 
low-income housing units (A. 67a, 85a). And a subcommittee 
of the Citizens Advisory Committee to the urban renewal 
project has called for the construction of low-income 
housing for people who must be displaced in order to elim­
inate illegal apartments (A. 92a). The results of these 
conditions were documented by plaintiffs who found that at 
least forty of the black and Puerto Rican households dis­
placed by the urban renewal project were relocated into

1/illegal, overcrowded apartments (A. 104a).
The Town has done almost nothing to alleviate the 

overcrowded conditions and to arrest the deterioration of 
the housing supply in these neighborhoods. As conditions 
have grown steadily worse over the past several years, the 
Town has explicitly refrained from any systematic code en­
forcement on the ground that relocation housing would only 
be available after the apartments in urban renewal projects

7/ See Exhibit A to Plaintiffs1 Answers to Interrogatories, dated October 2, 1969. At least six of these households 
were relocated into overcrowded dwellings in the Greenlawn 
section at Huntington (A. 98a).

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(construction of which has not yet begun) had been com-
8/pleted. Otherwise, the local defendants have completely 

ignored or rejected the proposals that might begin to provide 
a solution. They are opposed to the construction of any more 
low-rent housing and have even ruled out a code enforcement 
program with federal financial assistance on the ground that 
federal requirements for the provision of relocation housing 
would force the Town "to go into public housing beyond [its] 
power to pay" (A. 95a).

Whether the code enforcement proceedings which the local 
defendants now plan to commence is part of a purposeful scheme

i/to reduce Huntington's nonwhite population is not clear.

8/ The Housing Authority has pointed out that even if all of the 250 cooperative apartments planned in the urban renewal 
area were made available for low-income tenants it would 
not come close to solving the problem of overcrowded, sub­
standard housing. In fact, only 50 apartments will be 
available to low-income families (A. 73a). In light of 
the number of households that were displaced from the urban 
renewal area and forced to move into illegal, overcrowded 
apartments, however, it is clear that systematic code enforce­
ment at that time would have held up the urban renewal 
project. In addition, if the Town had displaced households 
through code enforcement without providing relocation housing, it would have been ineligible for recertification 
of its Workable Program for Community Improvement, a con­
dition for the receipt of most HUD assistance (See RHA 
§ 7100.1). Indeed, on April 22, 1970 HUD refused to recertify 
the Town's Workable Program on the ground, inter alia, that 
the "application failed to show what is being done or what 
is proposed to augment the housing supply to provide new 
units for displacees, especially those of low or moderate 
income." (Federal Defendants' Answer to Interrogatories 
Nos. 18 and 21, dated September 30, 1970).

9/ Although the local defendants have admitted only to plans to 
commence actions against four houses, they appear to con­
template systematic enforcement in the future (A. 86a).

-11-



What is clear, however, is that the impending proceedings will 
result in displacing at least seventeen black and Puerto 
Rican families from their homes and forcing them to leave 
Huntington. These families will be separated from their jobs, 
their children's education will be interrupted and they will 
be forced to seek a new home in a different community at a 
time when housing everywhere for low-income nonwhites faces 
its most critical shortage.

-12-



ARGUMENT
I

The Displacement From Their Homes 
of Black and Puerto Rican Residents 
of Huntington As A Result of Code 
Enforcement Violates the Equal Pro­
tection Clause of the Fourteenth 
Amendment When The Displacees Are 
Unable To Relocate Within The Com­
munity Largely Because of Their Race.

The facts in the present record are largely undisputed. 
Defendants have not denied that their policies have had 
the effect of reducing the supply of housing available 
to minority group residents nor have they denied that 
the impact of their actions has especially disadvantaged 
the black and Puerto Rican residents of Huntington whose 
housing market is greatly limited by racial discrimination. 
Indeed, defendants do not deny the existence of overcrowded 
and deteriorating housing conditions in nonwhite neighbor­
hoods or the inability of a nonwhite displacee to relocate 
within Huntington. Instead, the local defendants baldly 
assert that the Town's interest in eliminating illegal apart- 

justifies actions which have the effect of driving its 
nonwhite residents out of Huntington. We submit that this 
action violates the Equal Protection Clause of the Fourteenth 
Amendment because the Town's interest is not sufficiently 
compelling to justify the discriminatory impact of the code 
enforcement proceedings.

It is well established when governmental action is chal­
lenged as being violative of equal protection that the focus

-13-



of judicial inquiry is the actual effect, rather than the 
purpose or motivation, of the action. Palmer v. Thompson,
___U.S. ____, 39 L. W. 4759, 4761 (June 14, 1971);
Gomillion v. Lightfoot, 364 U.S. 339, 341 (1960) ; Smith 
v. Texas, 311 U.S. 128, 132 (1940) ; Yick Wo v. Hopkins.
118 U.S. 356 (1886). "[I]n a civil rights suit alleging
racial discrimination in contravention of the Fourteenth 
Amendment, actual intent or motive need not be directly 
proved." Hawkins v. Town of Shaw, 437 F.2d 1286, 1291 (5th 
Cir. 1971) (petition for rehearing en banc granted). The 
absence of an invidious discriminatory design is essentially 
irrelevant, for the unjustified, unequal treatment of non­
whites is clearly within the prohibition of the civil rights 
act which "makes a man responsible for the natural conse­
quences of his actions." Monroe v. Pape, 365 U.S. 167 (1961) 
see Kennedy Park Homes Ass'n v. City of Lackawanna, 436 F.2d 
108, 114 (2d Cir. 1970) cert. denied, 28 L.ed.2d 546 (April 
6, 1971) ; Whirl v. Kern, 407 F.2d 787 (5th Cir. 1969) . As 
the Supreme Court said in Monore v. Pape, supra:

"It is abundantly clear that one reason 
the legislation was passed was to afford 
a federal right in federal courts because, 
by reason of prejudice, passion, neglect, 
intolerance, or otherwise, state laws 
might not be enforced and the claims of 
citizens to the enjoyment of rights, priv­
ileges and immunities guaranteed by the 
Fourteenth Amendment might be denied by 
the state agencies" (emphasis added) (365 
U.S . at 180) .

Racial discrimination is constitutionally prohibited regard­
less of whether it results from

-14-



deliberate hostility or from mere indifference, since 
"it is of no consolation to an individual denied the 
equal protection of the laws that it was done in good 
faith." Burton v. Wilmington Parking Authority. 365 U.S. 
715, 725 (1961).

Thus, as this Court has stated:
'"Equal protection of the laws' means 
more than merely the absence of govern­mental action designed to discriminate;
• . .'we now firmly recognize that the 
arbitrary quality of thoughtlessness can be as disastrous and unfair to pri­
vate rights and the public interest as the perversity of a wilful scheme'."
(Norwalk CORE v . Norwalk Redevelopment 
Agency, 395 F.2d 920, 931 (2d Cir. 1968)).

Accord, Hawkins v. Town of Shaw, supra; Southern Alameda 
Spanish Speaking Organization (SASSO) v. City of Union 
City, 424 F.2d 291 (9th Cir. 1970). Only recently, more­
over, this Court has reaffirmed its view that a specific 
purpose to discriminate on the basis of race need not be 
proved in order to establish a violation of equal pro­
tection. in Kennedy Park Homes Ass'n v. City of Lackawanna. 
436 F.2d 108 (2d Cir. 1970), cert, denied, 28 L.Ed.2d 546 
(April 6, 1971), retired Justice Clark, sitting by designa­
tion, spoke for the Court in condemning a municipality's 
refusal to allow the construction of a black housing project 
in an all-white neighborhood based on its contention that 
the sanitary sewers were inadequate to handle the increased 
burden. He said:

-15-



"Even were we to accept City's allegation that any discrimination here resulted 
from thoughtlessness rather than a pur­poseful scheme, the City may not escape 
responsibility for placing its black 
citizens under a severe disadvantage which it cannot justify" (436 F.2d at 114).

The threshold question in the present case then is 
whether the action of the Town of Huntington sought to be 
enjoined will cause special hardships for its black and 
Puerto Rican residents with which they would not be faced 
if not for their race. In making such a determination, 
the factual inquiry is necessarily broad. Not only is the 
immediate objective of the government relevant, but the 
"historical context" and the "ultimate effect" of the 
action must be considered as well. Reitman v. Mu1key, 387 
U.S. 369, 373 (1967), and the reality of the impact of 
state action can only be assessed in the factual context 
in which it takes place. Hunter v. Erickson. 393 U.S. 389, 
391 (1969) .

The record in this case establishes that the immediate 
effect of the code enforcement proceedings brought by the 
local defendants will be to drive seventeen black and Puerto 
Rican families out of Huntington. It also establishes that 
such displacement is directly related to the existence of 
racial discrimination in the private housing market which 
severely limits the availability of relocation housing 
in the town. In this way, the local defendants are acting 
"so as to compound the problem of racial discrimination in 
the [Huntington] housing market, with the inevitable and

-16-



intended result that some Negroes and Puerto Ricans would 
be forced to leave the city altogether." Norwalk CORE v. 
Norwalk Redevelopment Agency, supra, 395 F.2d at 926.

When confronted with a closely similar situation in 
Norwalk CORE, this Court said:

"It is no secret that in the present state 
of our society discrimination in the hous­ing market means that a change for the 
worse is generally more likely for members 
of minority races than for other displacees.
This means that in many cases the reloca­tion standard will be easier to meet for 
white than for non-white displacees. But 
the fact that the discrimination is not in­
herent in the administration of the program, but is, in the words of the District Court, 
'accidental to the plan,1 surely does not 
excuse the planners from making sure that 
there is available relocation housing for all displacees" (395 F.2d at 931).

Similarly, in Kennedy Park Homes Ass'n. supra, the 
Court held that the deprivation of the ability of black 
residents of a city to live in the same areas as whites 
which may have unintentionally resulted from the combina­
tion of private racial discrimination in housing and the 
City's attenpt to deal with a sewer problem constituted a 
violation of equal protection. And in Arrington v. City 
of Fairfield, 414 F.2d 687 (5th Cir. 1969), the Fifth 
Circuit reversed the dismissal of a complaint alleging 
that the commercial redevelopment of a blighted residential 
area in which the municipality was participating would re­
sult in forcing a large number of poor black residents of 
the area to leave the city because of the unavailability

-17-



The Court con-of any other place for them to relocate, 
eluded:

" [P]laintiffs may be able to show that 
the City will knowingly actively precipitate 
the dislocation of persons who, because of a 
city-wide practice of residential discrim­ination will have no place to go. Exclusion 
by physical displacement is no less object­
ionable than such exclusion by rezoning.
Where there is state involvement, the fact that the decision to discriminate may be 
made by private individuals rather than a 
public official is not decisive" (414 F.2d at

Thus, a municipality is accountable under the Fourteenth 
Amendment and § 1983 when its otherwise neutral action has 
a racially discriminatory impact because of its failure to 
consider the discriminatory context m  which it was operat 
ing.

The responsibility of the local defendants for the dis­
criminatory displacement of members of plaintiffs1 class is 
based upon far more than their failure to compensate for 
racial discrimination in the private housing market in con­
nection with the code enforcement proceedings at issue here.

1 0/
For, as documented above, the defendants have consistently 
acted in the past in such a way as to create the conditions 
which have deprived the nonwhite residents of Huntington of 
adequate housing. Indeed, the overcrowded illegal apartments,

.10/ See pp. 7-11, supra.

-18-



occupied by low-income blacks and Puerto Ricans which 
the Town now seeks to eliminate are directly attributable 
to the Town's flagrant disregard of the interests of these 
minority group residents in its housing policies. In its 
"historical context"/ the Town which has forced much of 
its nonwhite population into several ghetto areas where 
overcrowding had increased and housing conditions have 
deteriorated, now seeks to eliminate the overcrowding at 
the expense of the already disadvantaged blacks and Puerto 
Ricans. The actions of the Town of Huntington, therefore, 
have paralleled those of the City of Lackawanna which this 
Court concluded represent "state action amounting to spe­
cific authorization and continous encouragement of racial 
discrimination, if not almost complete racial segregation." 
Kennedy Park Homes Ass'n v. City of Lackawanna, supra, 436 
F.2d at 114.

The ultimate impact of the Town's action will be devasta­
ting. While it apparently plans to systematically eliminate 
illegal apartments through code enforcement, it has no plans 
to provide any housing in the town for the families who will 
be displaced. In light of the extent of overcrowding in 
areas of high minority group concentration, it is evident 
that the large numbers of blacks and Puerto Ricans will 
inevitably be forced out of Huntington. The code enforce­
ment actions in the present case, like the urban renewal
program in Garrett v. City of Ilamtramck, ___ F.Supp. ___,
(CCH Pov.L.Rep. 5 9994 (E.D. Mich. No. 32004, March 7, 1969)),

-19-



"if allowed to continue without some guarantee that low- 
cost housing will be made available, will result in the
very 'Negro removal' of which plaintiffs complain" (Slip.

11/
op. p • 7) .

Once having established that the Town’s action sub­
jects black and Puerto Rican residents to a disproportion­
ate burden because of their race, there remains only to 
consider whether that action can be justified by a showing 
that it serves a compelling state interest. In light of 
the fact that the central purpose of the Fourteenth Amend­
ment was to being about racial equality under the law,
Palmer v. Thompson, supra, 39 L.W. at 4759, any govern­
mental action which subjects a racial minority to special 
hardships "bears a heavy burden of justification. . .and will 
be upheld only if it is necessary and not merely rationally 
related to the accomplishment of a permissible state policy." 
Where such racial discrimination is shown, moreover, the 
officials "must show a compelling governmental interest in 
order to overcome a finding of unconstitutionality„"
Kennedy Park Homes Ass'n v. City of Lackawanna, supra, 436 
F.2d at 114.

The Town seeks to justify its actions solely on the 
basis of its interest in eliminating the spread of blight 
in housing. While this is unquestionably a legitimate 
governmental objective, it need not be accomplished at the

11/ in this case, the district court enjoined an urban renewal 
project on the ground that it failed to provide a suffi­
cient number of low-cost dwelling units to provide for the

-20-



cost of driving nonwhite residents out of Huntington. 
Alternative means are readily available to the local de­
fendants whereby they can eliminate illegal apartments 
and at the same time provide decent housing in the own 
for families that are displaced. At a minimum, they can 
make efforts to relocate the families by assisting them 
to find and rent housing that is available on the private 
market. Where apartments are refused because of racial
discrimination, the Town Attorney is authorized to initiate

12/proceedings before the State Division of Human Rights. The 
Town can also provide housing for low-income residents 
relatively quickly through the federally financed leased

13/housing program. The Housing Authority would be authorxzed 
to lease existing vacant dwellings on the private market and 
rent them to low-income families at approximately 20% of 
their income. Of course, the ultimate solution lies only 
in the expansion of the existing housing supply available to

11/ (Cont'd)
relocation of households who would be displaced in the 
future as a result of the city's plans to demolish sev­
eral black neighborhoods. The land in the urban re­
newal area was realistically the only place in the city 
where relocation housing for future displacement could be constructed.

12/ See Local Defendants' Answers to Interrogatories Nos. 52, 53, 54, dated October 6, 1969.
13/ See 42 U.S.C. § 1423.

-21-



low and middle income blacks and Puerto Ricans. The con­
struction of additional units of public housing, increasing 
the numbers of apartments in the urban renewal project with

14/respect to which rent supplement payment can be made, and 
the encouragement of private building of low and middle- 
income multiple dwellings is a necessary beginning to a hous­
ing program which will make decent housing available to 
Huntington's racial minorities.

Thus, there clearly exist means by which the Town can 
prevent the enforcement of its zoning code from disadvan­
taging its nonwhite residents. And the Supreme Court has 
held that where "less drastic means are available" to fur- 
there a legitimate governmental policy, it is unreasonable 
to accomplish the objective at the expense of fundamental 
interests. Shapiro v. Thompson, 394 U.S. 618, 637 (1969).
So long as it makes a concurrent effort to rehouse the fam­
ilies who are displaced as a result of code enforcement the 
interests of both the Town and the displacees can be ade­
quately served.

In Kennedy Park Homes Ass'n. supra, this Court held 
that the city could not justify its refusal to permit the 
construction of a housing project sponsored by its black resi­
dents in an all-white neighborhood on the ground that the
14/ See U.S.C. § 1701 (h) (i) (d) (Cum. Supp. 1971). Tie Town 

could provide rent supplements with respect to 40%, or 
104, of the 260 cooperatives which are planned in the 
urban renewal area. Present plans call for rent supple­ments for only 20%, or 52, of the apartments (A. 73a).

-22-



sewer system was xnadequate. Instead, the city was ordered 
to permit the construction of the project and to take all 
necessary steps to improve the sewers. 436 F.2d at 114.
In Norwalk CORE, supra, this Court held that the city's 
interest in the execution of an urban renewal project could 
not justify the special difficulties faced by blacks and 
Puerto Rican displacees in finding relocation housing within 
the city. in such a situation, the plaintiffs would be en­
titled to enjoin further displacement. 395 F.2d at 925-26.
By the same token, the Town of Huntington's interest in 
eliminating illegal apartments cannot justify forcing non­
white residents to leave the town. Accordingly, the local 
defendants should be enjoined from such displacement until 
adequate relocation housing is made available.

The Town s adamant refusal to make any effort to provide 
housing, even with substantial federal assistance, for its 
residents who will be displaced by code enforcement indicates 
that the only real interest at stake here is the Town's abil­
ity to continue to ignore the welfare of its low-income non­
white citizens. It is immaterial whether the Town is pursuing
15/ The local defendants have refused to enter into a coop­

eration agreement which would have enabled the Housing 
Authority to construct at least 60 units of public hous- lng (A. 105a), and they have rejected the possibility 
of utilizing a federally-assisted code enforcement pro- gram which would provide funds for relocation assistance (A. 86a). See 42 U.S.C. § 1468 (Cum. Supp. 1971).

-23-



such a course because it intends to eliminate its low-
income black and Puerto Rican population, see e.g.
Gomillion v. Lightfoot, supra; Arrington v. City of 
Fairfield, supra, or because it is simply unwilling to 
spend the money to provide additional housing (A. 95a).
In either case it is clear that the policy is not so com­
pelling as to justify the drastic consequences of dis­
placement from the town of many black and Puerto Rican 
families. See Shapiro v. Thompson, 394 U.S. 618, 633 
(1969); Kennedy Park Homes Ass'n, supra, 436 F.2d at 114.

Finally, the claimed urgency of the impending code en­
forcement proceedings is belied by the Town's neglect in 
seeking to eliminate illegal apartments in the past. Indeed, 
by refraining in the past from systematic code enforcement 
because of the unavailability of any relocation housing the 
local defendants have at least tacitly recognized that 
their obligation to provide relocation for persons who will
be displaced is more important than the need to correct

16/
the violations. The lack of urgency in the enforcement of 
the zoning ordinance is exemplified by the four threatened

16/ See the Town’s applications for recertification of its 
Workable Program for Community Improvement, dated May 14, 1968, p. 22 and dated December 31, 1969, p. 3. They 
are part of the record as plaintiffs' Exhibits C and D 
to the hearing of April 23, 1971.

-24-



proceedings at issue here. Despite the discovery of 
the allegedly illegal conditions in July, 1970, legal 
proceedings did not become imminent until November,
1970 (A. 86a). And after the filing of plaintiffs' 
motion to enjoin the displacement, the Town was respon­
sible for a delay of over four months in the decision of 
the motion during which time no action was taken (A. 252a). 
It is plain, therefore, that no emergency exists which 
requires immediate action.

Since no compelling governmental interest has been 
shown, the commencement of code enforcement proceedings 
by the local defendants would deny the equal protection 
of the laws to low-income black and Puerto Rican residents 
who, largely because of their race, would be forced to 
leave Huntington as a result. Consequently, the Town 
should be enjoined from the enforcement of the zoning 
ordinance, the impact of which falls so unevenly upon 
racial minorities, until it accompanies its action with 
efforts which ameliorate and compensate for its discrimin- 
tory effects.

-25-



II

The Displacement of Persons From Their Homes 
By Code Enforcement In The Absence of Any Re­
location Housing Constitutes An Arbitrary Ex­ercise of The Police Power Which Violates The 
Rights of the Displacees, Protected By The Due 
Process Clause of the Fourteenth Amendment.Not To Be Deprived of the Only Housing That Is 
Available to Them In The Community In Which They Live.

Plaintiffs have shown above that the displacements caused 
by the threatened code enforcement proceedings will have a 
racially discriminatory impact upon low-income black and 
Puerto Rican residents of Huntington which violates their 
right to the equal protection of the laws. Such displacements 
would also arbitrarily deprive them of the only housing that is 
available to them in the community in which they live in viola­
tion of the due process clause of the Fourteenth Amendment.

The Fourteenth Amendment's prohibition against the depri­
vation of life, liberty or property without due process of law 
limits the extent to which a state can, in the exercise of its 
police power, encroach upon individual interests. The standards 
for determining when such constitutional limits have been ex­
ceeded were stated by the Supreme Court in Goldblatt v. Town of 
Hempstead. 369 U.S. 590, 594-95 (1962):

To justify the State in. . .interposing its 
authority in behalf of the public, it must 
appear first that the interests of the public 
require such interference ; and second, that 
the means are reasonably necessary for accom­
plishment of the purpose, and not unduly op­pressive upon individuals."

Thus, in judging the validity of the Town's action in the present

-26-



case the issue is whether the enforcement of its zoning code 
is reasonable in light of the nature of the individual in­
terests affected. Id. 369 U.S. at 595.

The first condideration to which we turn is whether the 
interest of the public requires the enforcement of the zoning 
code in Huntington. We do not question the propriety, or in­
deed the necessity, of the enforcement of an ordinance directed 
at the elimination of overcrowded housing units. There can be 
no question that overcrowding of the kind that exists in 
Huntington j_s in large part responsible for the deterioration 
of the housing supply and the spread of blight. Nor is there 
any question that overcrowded housing creates health and safety 
hazards for its occupants. But under the circumstances of this 
case, we think its enforcement without providing assistance to
the persons who will be left homeless as a result is so arbitrary

12/as to violate the Fourteenth Amendment.
In determining whether the public interest served by the 

exercise of this police power justifies the encroachment on in­
dividual rights, a court must consider "the availability of other 
less drastic protective steps, and the loss which [plaintiffs] 
will suffer from the imposition of the ordinance." Goldblatt v. 
Town of Hempstead, supra, 369 U.S. at 595. We have already pointed

17/ The Town's intermittent and haphazard enforcement of its zon­
ing ordinance in the past indicates that it did not consider 
the public interest to require a systematic policy of code 
enforcement (A. 250a-252a). We are not here faced with a 
situation where the local defendants have consistently acted 
to eliminate illegal apartments. Rather, the threatened pro­ceedings represent an exception rather than the rule.

-2 7-



out that there are means readily available to the Town by
which it can eliminate overcrowded housing conditions and
minimize the hardships imposed on the families who are dis- 18/
placed. The expansion of the existing housing supply by
the construction of more public housing, an increase in the 
number of apartments in the urban renewal project that will 
receive rent supplements, and the elimination of multiple 
dwelling zoning restrictions which make it impossible for 
private enterprise to contribute to the solution of the prob­
lem are all part of a less drastic and more lasting solution 
to overcrowding. As a temporary solution, moreover, the Town 
can provide relocation assistance to families who will be 
displaced by code enforcement.

On the other hand, the enforcement of theordinance will, 
m  light of housing conditions in Huntington, be "unduly op­
pressive upon individuals." Goldblatt v. Town of Hempstead, 
supra, 369 U.S. at 595. The right not to be deprived by 
public action of the only housing that is available in the com­
munity in which one lives is indeed fundamental. See, e.g., 
Reitman v. Mulkey, 387 U.S. 369 (1967) ; Shelley v. Kraemer.
334 U.S. 1 (1948) ; Buchanan v. Warley, 345 U.S. 60 (1917) ; 
Kennedy Park Homes v. City of Lackawanna, supra; SASSO v. City

18/ See pp. 21, 22, supra.

-2 8-



of Union City, supra; Norwalk CORE v. Norwalk Redevelopment
Agency, supra. It has been recognized by Congress in the 
relocation requirements of the Housing Act, 42 U.S.C. § 1455, 
and provides the basis for the recently enacted Uniform Re­
location Assistance and Land Acquisition Policies Act of 1960. 
Public Law 91-646, 91st Cong. S. 1, 84 Stat. 1894. And in its 
workable program regulations the Department of Housing and 
Urban Development has made the replacement of housing units 
destroyed by any public action on a one-to-one basis and the 
relocation of the occupants a requirement of most federal 
assistance. See 42 U.S.C. § 1451(c) ; RHA 7100.01.

The ability to establish roots in a community, furthermore, 
is the key to the enjoyment of other fundamental rights. Ac­
cess to education for children, to employment opportunities, 
to the electoral process, and to the benefits of other public 
services all depend upon residence. See, e.g., Shapiro v. 
Thompson, 394 U.S. 618 (1969); Gomillion v. Lightfoot, 364 U.S. 
339 (1960) ; Edwards v. California, 314 U.S. 160 (1941) . The 
disruption in the lives of low income blacks and Puerto Ricans 
who are presently facing eviction will be especially great be­
cause of the extreme difficulties they will face in relocating 
anywhere.

Finally, to the factors set forth by the Supreme Court in 
Goldblatt, supra, to be weighed in determining the reasonableness 
of a particular exercise of a municipal police power, we add the 
consideration of the municipality's responsibility for creating

-29-



the conditions which require the exercise of the power. For 
where the municipality has brought about the violations of 
its ordinance as a result of its own deliberate policies, it 
is inequitable to permit it to eliminate the violation at the 
expense of important private rights. In such a case the munic­
ipality would only be penalizing individuals for its own fail­
ure to act in the public interest.

But this would be precisely the effect of the Town's dis­
placement of families from overcrowded houses without provid­
ing relocation. In reducing the housing supply available to 
low and middle income families and preventing its replenishment, 
the Town has directly caused the overcrowding and is respon­
sible for the unavailability of any relocation in Huntington 
for the potential displacees. Indeed, the Town was only able 
to carry out the demolition phase of the urban renewal project
by actually relocating many families into illegal apartments
, • • 12/of the kind it now seeks to eliminate. Thus, the Town shifted

the burden for the "progress" achieved by urban renewal
(which at present is measured only be vacant land and the net
reduction of over 200 critically needed housing units) onto the
displaced families who were inadequately located. It now plans
again to place the burden for eliminating the consequences of
its past policies upon those least able to bear it.

We submit, therefore, that the Town's interest in enforcing 
its zoning ordinance cannot be justified in light of the extent
-------------  -SO-
lO/ See pp. 32-33, infra.



of the individual injuries that will result and in light of 
the far less drastic alternatives that are available to ac­
complish the same goal. We do not by this argument seek to 
revive long discredited notions of substantive due process.
See, e.g., Adkins v. Children's Hospital, 261 U.S. 525 (1923); 
Lochner v. New York, 198 U.S. 45 (1905). Rather, where the 
right of a family not to be deprived of the only housing that 
is available to it in the community in which it lives is at 
stake, we think that the Town must make a more compelling show­
ing to justify its action than it has in the present case. See 
Shapiro v. Thompson, 394 U.S. 618 (1969). The Town may not es­
cape its own responsibility for its housing problem by sacri­
ficing the fundamental interests of its residents but should in­
stead, be required to utilize available alternatives to achieve 
a more durable solution.

-31-



Ill
The Code Enforcement Proceedings Should 
Be Enjoined Because The Displacement of The Tenants From Huntington Is a Direct 
Consequence of the Town's Failure to 
Adequately Relocate the Displacees From the Urban Renewal Area in Violation of 
42 U.S.C. 5 1455(c).

The local defendants have not disputed plaintiffs' 
showing that many black and Puerto Rican households that 
were displaced as a result of the urban renewal project 
were relocated into overcrowded, substandard dwellings in 
ghetto areas of Huntington (A. 97a-98a). Plaintiffs have 
shown that there were fifty-six families who were dis­
placed from the urban renewal area that the Town did not 
even carry on its relocation workload and, therefore, did 
not assist (A. 167a, 191a, 207a-210a). At least sixty-six 
of the displaced households, moreover, actually relocated
into dwellings which did not comply with federal standards

20/
(A. 68a, 104a). Of these, forty were illegal apartments 
in overcrowded houses (A. 104a). The experience of the 
five black and Puerto Rican plaintiffs is typical of the

21/inadequacy of the relocation housing provided by the Town.
Of the four families who moved into illegal apartments,

20/ See Exhibit A to Plaintiffs' Answers to Interrogatories, dated October 2, 1969.
2_1/ See Transcript of depositions of plaintiffs English, 

Cofield, Whatley, Chambers and Elias, dated July 24,
1969 and filed May 10, 1971.

-32-



three were forced to separate because the space was in­
sufficient (Tr. pp. 52-53, 100-101, 201-202). One family 
returned to Puerto Rico because they could not find any 
housing at all (Tr. p. 100).

The overall effect of the displacements from the 
urban renewal area is clear. At a time when the local
defendants described the vacancy rate in Huntington as

22/
"nominal" and "miniscule," they were in the process of 
displacing over 240 low and middle income households from 
the urban renewal project area. Yet, despite such large 
scale displacements into a housing market with essentially 
no vacancies, the Town has provided only forty units of 
new housing. And the construction of the proposed 260 
middle income cooperative apartments (of which 50 will 
receive rent supplements) in the project area has not 
even begun.

There can be no doubt that the local defendants vio­
lated their obligations under 42 U.S.C. § 1455(c)(1) to 
insure that:

22/ Workable Program for Community Improvement, dated
December 31, 1967, pp. 10, 16 (Exhibit B to April 23, 1971 hearing).

-33-



"There shall be a feasible method for the 
temporary relocation of individuals and 
families displaced from the urban renewal 
area, and there are or are being provided 
in the urban renewal area or in other 
areas not generally less desirable. . .decent, safe and sanitary dwellings equal 
in number to the number of and available to such displaced individuals and fami­
lies. . . "

The Town was required under § 1455(c)(2), moreover, to 
provide assurance that decent, safe and sanitary dwellings 
were available to every household that was displaced. But 
not only did the defendants fail to provide adequate re­
location by placing households in overcrowded substandard 
dwellings, but to this date the urban renewal project has 
resulted in a net reduction of over 200 units in the hous­
ing supply available to low and middle income households.

The connection between these violations of § 1455(c) 
and the fact that the families who will be displaced as a 
result of the threatened code enforcement actions will be 
forced to move out of Huntington is direct. For these fam­
ilies will be displaced from the town because of the absence 
of any relocation housing,and the absence of vacancies is 
in large part attributable to the reduction in the housing 
supply caused by urban renewal. Thus, if the local de­
fendants are permitted to proceed with the planned code en­
forcement, the displacees will suffer the consequences of 
the Town's previous violation of § 1455(c), and the Town's 
actions will result in precisely the injury that this section

-34-



was designed to prevent --a change for the worse for 
households affected by urban renewal. See Norwalk CORE, 
supraf 395 F.2d at 931; Western Addition Community 
Organization v. Weaver, 294 F.Supp. 433 (N.D. Cal. 1968) ; 
Garrett v. City of Hamtramck, supra.

The effect of this violation of federal law is in no 
way diminished by the fact that no urban renewal displacee 
is presently threatened with displacement. Since the ten­
ants who stand to be displaced as a result of code enforce­
ment will be injured as a consequence of the violation of 
§ 1455(c), they clearly have standing to challenge the 
Town's action. Shannon v. Department of Housing and Urban 
Development, 436 F.2a 809 (3rd Cir. 1970) ; Powelton Civic 
Home Owners Ass'n v . Department of Housing and Urban 
Development, 284 F. Supp. 809 (E.D. Pa. 1968). The purpose 
of § 1455(c) was not only to insure relocation for the actual 
displacees of the urban renewal area, but to protect as well 
the rest of the community from the blighting influences of 
large reductions in the housing supply. See U.S. Code Congr. 
Service, 81st Cong., 1st Sess.,pp. 1555-1561 (1949).

Nor should the fact that plaintiffs are seeking to enjoin 
only the local defendants from inflicting the consequences 
of the previous violation of their obligations under 1455(c) 
upon the members of their class rather than to enjoin the 
execution of the urban renewal project in the course of which

-3 5-



the violations took place make a difference. The Town's
obligation to provide adequate relocation is derived
from the capital grant contract which it entered into
with the federal defendants and its acceptance of funds
was conditioned upon its compliance with § 1455(c). Its
obligation is one which plaintiffs have standing to raise/
Shannon v. HUD, supra, and which must be determined as
a matter of federal law. Clearfield Trust Co. v. United
States, 318 U.S. 363 (1943).

We submit that the obligations imposed on the Town
by federal law and by the acceptance of federal funds must
be enforceable against the Town by persons directly affected
by their violation. This right of action on behalf of
members of plaintiffs' class, although nowhere specifically
authorized in the Housing Act, should be implied from its
language and purpose. Implied private remedies in the form
of civil actions based on federal regulatory statutes have
received recognition in a variety of statutory settings.
See, e.g., Tunstall v. Brotherhood of Locomotive F. & E.,
323 U.S. 210 (1944) (duty of fair representation under the
Railway Labor Act), and J. I. Case Co. v. Borak, 377 U.S.
426 (1964) (stockholder’s action under Securities Exchange

23/Act) ._____ In each case, the implied remedy has been considered
23/ See also, T. B. Harms Company v. Eliscu, 399 F.2d 823

(2d Cir. 1964) (action under copyright laws); Fitzgerald 
v. Pan American World Airways, 229 F.2d 499 (2d Cir. 1956) 
(action under Civil Aeronautics Act); Reitmeister v. 
Reitmeister, 162 F.2d 691 (2d Cir. 1947) (action under 
Federal Communications Act); Taussiq v. Wellington, Inc., 313 F.2d 472 (3rd Cir. 1963) .

-36-



necessary to effectuate the statutory purpose.
In Gomez v. Florida State Employment Service, 417 

F.2d 569 (5th Cir. 1969), the court found an implied 
right of action on behalf of migrant workers under an 
obscure 1933 federal regulatory statute. There, as in 
the case at bar, the defendant was a state agency functioning 
under a federal regulatory scheme and receiving federal 
grants in aid. The court held that the act's provisions 
"conferred an interest" on the workers, and that the im­
plied remedy of a private right of action was "imperatively" 
called for in order to carry out the statutory purpose.
417 F .2d at 576. The court rejected the contention that 
remedies to secure compliance with the statute could be 
limited to federal administrative enforcement, stating:

"It is unthinkable that Congress, obviously 
concerned with people, would have left the 
Secretary with only the sanction of cutting 
off funds to the state. Moreover, the 
private civil remedy is a method of policy 
enforcement long honored explicitly in 
statutes and by implication with the help of 
courts. Congress more and more commits to 
individuals, acting as private Attorneys 
General, the effectuation of public rights 
through relief to individuals." (417 F.2d at 
576)

The same reasoning impels recognition of the claim 
under § 1455(c) here. That section is clearly intended 
to confer an interest on all members of the class whose hous­
ing opportunities are so vulnerable to the consequences of

-37-



Huntington's unlawful urban renewal actions. And these 
persons are personally affected representatives of the 
public interest, expressed in the Act's legislative his­
tory, of preventing the spread of blight through the urban 
renewal relocation requirement. To hold otherwise would 
deprive the intended beneficiaries of federal projects of 
a remedy for the violations of federal laws once the pro­
ject is completed or once the federal funds have been used, 
and thereby undermine the purpose of the Housing Act. While 
an injunction against federal and local authorities from 
carrying out an urban renewal project in violation of fed­
eral law may be appropriate before the damage sought to be 
enjoined has been done, see, e.g., Clark v. Romney, 321 
F. Supp. 458 (S.D. N.Y. 1970), it is unrealistic to expect 
that the persons affected will always be able to seek legal 
redress at just the right moment. As in the present case,

24/their only remedy may be to seek redress for a past violation.
24/ In Norwalk CORE v. David Katz & Sons, Inc., 410 F.2d 532 

(2d Cir. 1969), this Court was faced with the similar is­
sue of whether a displacee from an urban renewal project 
could enforce the federal relocation standards of § 1455(c) 
against a private sponsor of the project. In this case, a 
family sought to enjoin its eviction from a private housing 
project on the grounds that the rent charged was higher than 
permissible under federal standards. Because this Court 
found that the rent charged was proper and the family had 
been adequately relocated, however, it did not “pass upon 
the question whether any or all of the private defendants have an obligation to assist in relocation of tenants in 
a Project area" 410 F.2d at 535.

-38-



IV

The District Court Erred in Denying Injunctive 
Relief On The Ground That The Prospective Dis- Placees Are Not Members Of The Class which Plaintiffs Represent

Although it is our position that the district court 
erred in refusing to grant a preliminary injunction on the 
basis of the record before it, it is clear that the denial 
of plaintiffs' motion was based on the court's opinion that 
the prospective displacees were not members of the class which 
plaintiffs represent rather than on the merits of their claim. 
The court did not appear to question plaintiffs' showing 
as to the discriminatory effect of the Town's proposed action 
upon those families who would be displaced from their homes 
as a result. Rather, it was concerned only with whether 
they had previously been displaced from the urban renewal 
area (A. 143a-145a, 235a-236a). When it accepted the Town's 
representation that none of the occupants of the four houses 
that were the targets of code enforcement proceedings had 
been displaced by urban renewal, it denied plaintiffs' motion 
summarily. Thus, it held that plaintiffs were only entitled 
to challenge the action of the Town on behalf of persons 
previously displaced by the urban renewal project (A. 236a).

The court clearly erred in this ruling. The complaint 
expressly defines the class on whose behalf plaintiffs sued 
as "all the black and Puerto Rican residents of the Town

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who are being and have been deprived of their rights to 
equal housing opportunities by the actions of defendants"
(A. 3a). These actions are not limited to the execution of 
the urban renewal project but include code enforcement, 
restrictive zoning and opposition to public housing (A. 10a-16a). 
Only the First Claim for Relief of the complaint is 
specifically concerned with households displaced from the 
urban renewal area (A. 4a-10a). Indeed, the Second Claim for 
Relief seeks to enjoin the very conduct at issue here (A.
10a-13a).

As in Norwalk CORE, supra, plaintiffs have challenged 
certain policies of a municipality because of their discriminatory 
effect upon low income blacks and Puerto Ricans. Whereas in 
Norwalk CORE the plaintiffs focused their attack on the 
urban renewal project, plaintiffs here challenge a wider 
range of public action. in each case, however, the allegations 
that low—income blacks and Puerto Ricans are being deprived 
of adequate housing raise questions that are common to the 
entire class. Norwalk CORE, supra, 395 F.2d at 937.

The Court of appeals for the Ninth Circuit recently 
recognized the propriety of a class action which, like the 
present case, broadly challenged a municipality's housing 
policies on behalf of low-income minority group residents.
Southern Alameda Spanish Speaking Organization v, City of 
Union City, 424 F.2d 291, 295-96 (9th Cir. 1970). And in

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ordering the city to "take steps necessary and reasonably
feasible under the law to accommodate within a reasonable
time the needs of low-income residents" on remand, the district
court granted relief with respect to the class that is very
similar to what plaintiffs seek here. Slip op. p. 21

2 5/(N.D. Cal. No. 51590, July 31, 1970).
Since all of the requirements of Rule 23 have been met 

by the allegations of the complaint as well as by the proof, 
difficult to understand the rationale upon which the 

district court determined that the class which plaintiffs 
represent was limited to the displacees from the urban 
renewal area. in its July 2, 1970 memorandum opinion it 
appeared to hold that the suit was maintainable generally as 
a class action (A. 10a—11a), and no explanation for the 
limitation was given during the hearing on plaintiffs' motion. 
Such a limitation is tantamount to a dismissal of the major 
part of the complaint and is clearly error. See Bui 1d nf
Buffalo, Inc, v. Sedita, ___ F.2d ___ (2d Cir. No. 34886,
April 13, 1971).

2_5/ The scope of the class in this case is similar to that in 
employment discrimination cases where courts have recognized 
the propriety of class actions which constitute an across the 
board challenge to the discriminatory policies of an employer. 
See Johnson v. Georgia Highway Express, 417 F.2d 1122 (5th Cir. 
1969); Carr v. Conoco Plastics. Inc.. 423 F.2d 57 (5th Cir.

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CONCLUSION

For the foregoing reasons, the judgment below 
should be reversed and the case remanded to the district 
court with directions to grant injunctive relief as prayed 
for by plaintiffs. In the alternative, the case should be 
remanded to the district court to make findings of fact 
and conclusions of law on the merits of plaintiffs' claim.

Respectfully submitted,

Jack ''Greenberg 
Jonathan Shapiro
Morris J. Bailer

10 Columbus Circle
New York, New York 10019

Sam R. Raskin 
34 Dewey Street 
Huntington, New York 11743

Attorneys for Plaintiffs-Appe1lants

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