City of Hartford v. Town of Glastonbury Supplemental Brief of Plaintiffs-Appellees on Rehearing En Banc

    76
I n the

United States Court of Appeals
FOR THE SECOND CIRCUIT

.. |------- j—f——_ _ I
CITY OF HARTFORD, MIRIAM JORDAN and 

FANNIE MAULDIN,
Plaintiffs-Appellees, 

v.

TOWNS OF GLASTONBURY, WEST HARTFORD and 
EAST HARTFORD,

Defendants-Appellants.

Osr Appeal F kom the U nited S tates District Court 
foe the District op Connecticut

SUPPLEMENTAL BRIEF OF PLAINTIFFS- 
APPELLEES ON REHEARING EN BANC

R ichard F. Bellman 
Suburban Action Institute 
351 Broadway 
New York, New York 10013

Mary R. H ennessey 
B arry S. Zitser 
550 Main Street 
Hartford, Connecticut 06106

Attorneys for Plaintiff s-Appellees



TABLE OF CONTENTS

PAGE

Statement of the Issue .............................................  1

Statement of the Case ...............................................  1

Statement of the Facts ..............   3
The Goals of the Housing and Community De­
velopment Act of 1974 ........................................ 4
The Housing Assistance Plan—The Means for 
Promoting Low Cost Housing Opportunities . . .  5
The City of Hartford and the Appellant Towns 7
The Application Process and the Meeker Memo­
randum .................................................................  8
The Current Position of HUD ...........................  9

The Opinion of the Panel .......................................... 9

Argument ..................................................................... 13
Introduction................................................    13
The City of Hartford and the Low Income Ap­
pellees Having Standing to S u e .........................  14

Appendix
Opinion of the Panel Dated December 23, 1976



IX

TABLE OF AUTHORITIES

C ases: PAGE

Arlington Heights v. Metropolitan Housing Corp.,
45 U.S.L.W. 4073 (January 11, 1977) ................ 21,24

Association of Data Processing, Inc. v. Camp, 397
U.S. 150 (1970) ................................................... 15,21

Evans v. Lynn, 537 F.2d 571 (2d Cir. 1976), cert.
den. 45 U.S.L.W. 3489 (January 18, 1977) . .10,11,12,

13,15,19, 20, 21, 22, 23, 25
Linda R.S. v. Richard D., 410 U.S. 614 (1973) .........  21
Nebraska Press Ass’n v. Stuart, 44 U.S.L.W. 5149

(June 30, 1976) ................................................... 14
Simon v. Eastern Kentucky Welfare Rights Organi­

zation, 48 L.Ed.2d 450 (1976) ....................... 19, 21, 22
Super Tire Engineering Co. v. McCorkle, 416 U.S.

115 (1974) ................    14
Trafficante v. Metropolitan Life Ins. Co., 409 U.S.

205 (1973) ............................................................ 21
Warth v. Set din, 422 U.S. 490 (1975) ..11,12,13,15,19,

20, 21, 24, 25
United States v. SCRAP, 412 U.S. 669 (1973) .........  21

S tatu tes:

42 U.S.C. ■§ 1437(g) ....................................................  5
42 U.S.C. § 5301(a) ....................................................  4,18
42 U.S.C. § 5301(c) .................................................. 4,5,18
42 U.S.C. § 5301(d) ....................................................  5



TABLE OF AUTHORITIES 111

PAGE

42 U.S.C. § 5304(a) ....................................................  6, 7
42 U.S.C. § 5304(e) ....................................................  8
42 U.S.C. § 5305 ......... ................................................  5
42 U.S.C. § 5306(e) ....................................................  15

Regulations:

24 C.F.R. § 570.303(c) (2), 41 Fed. Reg. 11128
(March 16, 1976) ................................................. 9

24 C.F.R. §570.303(e)(4) ........................................... 23,24
24 C.F.R. § 570.409 (d)(i) ........................................... 15



In t h e

United States Court of Appeals
FOR THE SECOND CIRCUIT

— — — - — — f --------------------------------------------------

City of H artford, Miriam J ordan and 
F annie Mauldin,

Plaintiff s-Appellees,
v.

Towns of Glastonbury, W est H artford and 
E ast H artford,

Defendants-Appellants.

On Appeal F rom the U nited States District Court 
for the District of Connecticut

----------------4----------------

SUPPLEMENTAL BRIEF OF PLAINTIFFS- 
APPELLEES ON REHEARING EN BANC

Statement of the Issue

The issue considered in this brief is whether the City of 
Hartford and the individual appellees have standing to 
bring this suit.

Statement of the Case*

Plaintiffs-appellees filed their complaint on August 11, 
1975 challenging the approval by the Federal Department

* As noted on p. 13 infra, appellees are limiting their dis­
cussion to the issue of standing and this brief therefore is a sup­
plement to appellees’ first brief.



2

of Housing and Urban Development (HUD) of grants in 
aid to seven suburban Hartford communities. These grants 
were awarded pursuant to the Housing and Community 
Development ,Act of 1974, Public Law 93-383, 42 U.S.C. 
$ 5301, et seq. Plaintiffs ’ primary claim was that HUD 
violated the terms of the 1974 law in approving the grants 
in light of the inadequacy of the applications for funding 
with respect to commitments for lower cost housing.

Simultaneously with the tiling of the complaint, the 
plaintiffs moved for a preliminary injunction restraining 
HUD from disbursing any of the monies approved pursu­
ant to the challenged grants to the seven towns. On August 
26, 1975 the court granted motions by HUD and the seven 
towns to join the towns as defendants. On September 22- 
24, 1975, a hearing was held in which plaintiffs’ motion for 
a preliminary injunction and the trial on the merits were 
consolidated. On September 30 the district court granted 
plaintiffs’ application for preliminary injunction, enjoining 
the towns from drawing upon the federal treasury or ex­
pending funds pursuant to the challenged grants. On 
January 28, 1976, the district court rendered its final deci­
sion making permanent the injunction previously entered 
(for a fuller description of the proceedings below see ap­
pellees’ first brief, pp. 3-9).

The district court held that HUD had violated the 1974 
Act in the case of six of the towns by approving grants 
notwithstanding the fact that the applications had failed 
“to make any assessment whatsoever of the housing needs 
of low and moderate income persons who might be ‘ex­
pected to reside’ within their borders” (A73). The Court 
held that the assessment of the expected to reside figure 
was a required and non-waivable aspect of the application 
for community development funds. The assessment was to 
be contained in the housing assistance plan (HAP) of 
the application (A73). That determination resolved the 
claims of appellants West Harford and Glastonbury.



3

With respect to East Hartford, the issue was somewhat 
different, as that town had submitted an expected to re­
side estimate. The district court found, however, that the 
figure was legally inadequate, having been based exclu­
sively on the town’s waiting list for public housing units. 
The court held that “HUD had a duty to do more than ac­
cept any ‘expected to reside’ figure proposed by East Hart­
ford, however inadequate its size or derivation. The ad­
ministrative record discloses that it did not live up to that 
duty” (A86-87).

The district court enjoined the towns from drawing- 
funds from the United States Treasury pursuant to the 
challenged grants. The court specifically noted, however, 
that the defendant towns could resubmit their grant ap­
plications to HUD, and the district court would lift the 
injunction for any town which filed an acceptable revised 
HAP (A88).

Three of the towns, East Hartford, West Hartford and 
Glastonbury, filed appeals. HUD chose not to appeal and 
filed a brief amicus curiae with this Court. On December 
23, 1976, a panel of this Court affirmed the district court 
ruling. Judge Meskill filed a dissenting opinion. On 
February 8, 1977 this Court granted the appellants’ peti­
tions for rehearing en banc. On February 23, 1977, this 
Court addressed several questions to the parties relating 
to whether the appellant towns had reapplied to HUD 
for their 1975 grants pursuant to the terms of the district 
court injunction and the result of any such reapplication. 
Those questions are fully set out and responded to on pp. 
13-14, infra.

Statement of the Facts

Appellees’ first brief contains a detailed statement of the 
application process engaged in by the seven defendant 
towns leading up to the award of the challenged grants. 
That brief also contains a discussion of the nature of the



4

appellant communities and a summary of the social, eco­
nomic and housing problems confronted by Hartford. 
Those discussions will not be repeated in this brief, but 
certain factual matters particularly relevant to the stand­
ing issue will be summarized. In this regard, the goals of 
the Housing and Community Development Act of 1974 are 
critical.

The G oals o f the H ousing and Community D evelopm ent 
A ct o f 1974.

The Housing and Community Development Act of 1974 
is addressed primarily to the needs of low and moderate 
income persons. Congress stated that its “primary objec­
tive” in enacting the 1974 law was:

the development of viable urban communities, by pro­
viding decent housing and a suitable environment and 
expanding economic opportunities, principally for per­
sons of low and moderate income. 42 TJ.S.C. § 5301(c)

To insure that funds pursuant to this law would further 
this objective, Congress set seven specific goals for com­
munity development grants, stressing that the Federal 
monies be used principally for persons of low and mod­
erate income and for housing or housing related activities. 
42 U.S.C. § 5301(c) (l)-(7).

A major concern set forth by Congress in the 1974 Act
related to the concentration of lower income persons in 
inner city areas. The statute opened with a declaration by 
Congress that the “Nation’s cities, towns and smaller urban 
communities face critical social, economic, and environ­
mental problems in rising and significant measure from 
—(1) the growth of population in metropolitan and other 
urban areas, and the concentration of persons of lower in­
come in central cities . . .” 42 U.S.C. § 5301(a). One of 
the seven specific goals for the use of the community de­
velopment funds is to promote:

the reduction of the isolation of income groups within 
communities and geographical areas and the promo-



5

tion of an increase in the diversity and vitality of 
neighborhoods through the spatial deconcentration of 
housing opportunities for persons of lower income and 
the revitalization of deteriorating or deteriorated 
neighborhoods to attract persons of higher income. . . . 
42 U.S.C. § 5301(c)(6) (emphasis added).

Pursuant to Title I of the 1974 Act, Congress established 
a consolidated block grant program whereby local commu­
nities may obtain community development funds to under­
take a variety of possible programs and projects outlined 
in the law. See 42 U.S.C. § 5305. Title I replaces the 
earlier HUD categorical development programs. The type 
of programs permitted under the new law indicates an 
overriding concern by Congress for relieving the plight of 
low and moderate income persons residing in urban 
communities.

Title I community development grants themselves may 
not be used for construction of new low cost housing, al­
though housing rehabilitation and other housing related 
activities are permitted. 42 U.S.C. § 5305. New low cost 
housing construction monies are available, however, under 
Title II (“Assisted Housing”) of the legislation. See, 42 
U.S.C. § 1437(g). Furthermore, Congress stated that in 
providing community development funds, it sought to cre­
ate “a consistent system of Federal aid” which promotes 
the achievement of the goal of “a decent home and a suit­
able living environment for every American family” and 
which “fosters the undertaking of housing and community 
development activities in a coordinated and mutually sup­
portive manner.” 42 U.S.C. § 5301(d) (3)~(4).

The Housing A ssistance Plan— the M eans for Prom oting  
Low Cost Housing Opportunities

By merging the categorical community development proj­
ects into the block grant program, under the 1974 Act, Con­
gress simplified the process whereby local jurisdictions 
may obtain federal funds and gave local communities



6

greater discretion in determining how the funds will be 
used. In light of this delegation of responsibility, how­
ever, Congress emphasized the importance of the applica­
tion process. Applicant communities must detail their 
needs and set goals for meeting those needs. Thus, HUD 
is statutorily precluded from approving an application for 
Title I  funds unless the applicant has submitted to the 
Secretary an application which “sets forth a summary of 
a three-year community development plan which identifies 
community development needs, demonstrates a comprehen­
sive strategy for meeting those needs, and specifies both 
short-and long-term community development objectives 
which have been developed in accordance with area wide 
development planning and national urban growth policies.” 
42 U.S.C. § 5304(a)(1).

In order to ensure that the goal of expanded housing op­
portunities is accomplished, an applicant for Title I funds 
must submit a housing assistance plan as part of its appli­
cation. Through its HAP, the applicant is to set forth cer­
tain basic information with respect to low cost housing. 
First, the HAP must contain an accurate survey of the 
condition of the housing stock in the community. The ap­
plicant must then assess “the housing assistance needs of 
lower income persons . . . [including those] residing in or 
expected to reside in the community.” The applicant must 
also set forth “a realistic annual goal for the number of 
dwelling units or persons to be assisted” and, finally, indi­
cate “the general locations of proposed housing for lower- 
income persons. . . .” 42 U.S.C. § 5304(a) (4).

With respect to assessing housing needs of lower income 
persons, the estimate as to “expected to reside” refers to 
lower income persons and families not currently living in 
the community but who would , wish to do so because of 
economic or other opportunities. With respect to the re­
quirement that the general locations of proposed housing 
for lower income persons be set forth in the HAP, the law 
provides that this be done with the objective of “promoting



7

greater choice of housing opportunities and avoiding undue 
concentrations of assisted persons in areas containing a 
high proportion of low-income persons. . . . ” 42 U.S.C. 
§ 5304(a) (4) (C). As the majority of the panel in this 
Court stated, the “HAP serves as the vehicle tying together 
the community development and housing assistance por­
tions of the Act, in furtherance of the Act’s overall goal of 
coordination of federal urban efforts . . .” (Slip Op. 1088).

The City of H artford and the A ppellant Towns

The disparities between Hartford and the appellant 
towns which are suburbs of Hartford, are fully outlined in 
the appellees’ initial brief (pp. 14-21). Generally, how­
ever, the appellant towns have predominantly white popula­
tions and economically range from being middle income 
communities to relatively affluent areas. All these com­
munities have experiencd in recent years commercial and 
industrial growth and currently have substantial employ­
ment opportunities for lower income persons. Nonetheless, 
in all three towns, housing is costly and generally unavail­
able to lower income workers.

The City of Hartford itself stands in marked contrast. 
Over half of the City’s population is dependent upon public 
or general assistance benefits, or is living exclusively on 
Social Security or unemployment benefits (A146). Be­
tween 40-45% of the entire town general assistance case­
load in the State of Connecticut is in the City of Hartford 
(A151). The unemployment is staggeringly high (A146). 
The great bulk of the minority population in the Hartford 
metropolitan region resides in the City itself. As of 1970, 
35.5% of Hartford’s population was comprised of minority 
citizens and that figure has since increased substantially 
(AMS).

Hartford’s housing stock is extremely depressed, with 
about 16,000 substandard units located in the City. Cor­
rection of this situation is difficult as the City is without 
sufficient vacant land for new housing construction and



8

lacks the financial resources for an adequate remedial pro­
gram (A157). Furthermore, the great hulk of subsidized 
housing units in the greater Hartford region already are 
located in Hartford. Thus, 71% of all public housing units 
in the metropolitan region are in Hartford and over 60% 
of all subsidized units are in the City. Yet, Hartford still 
requires thousands of additional subsidized housing units 
to meet the current needs of its lower income population 
(A158).

The A pplication Process and the M eeker Memorandum.

In accordance with the requirements of the 1974 Act, 
appellants’ applications for Title I funds were first filed 
with the area-wide planning agency for the Hartford 
region, the Capitol Region Council of Governments. See, 
42 U.S.C. § 5304(e). Several civil rights groups and the 
City of Hartford commented on the applications. Sub­
stantial concern was expressed at this level of review, as 
well as at HUD, due to the inadequacy of housing goals 
and plans for lower income persons in the applications of 
the suburban communities. The final day for submissions 
of applications to HUD was April 15, 1975.

On May 21, 1975, the normal review process with respect 
to the HAP portion of the applications was interrupted. 
On that day a memorandum was issued from David O. 
Meeker, Jr., Assistant Secretary for Community Planning 
and Development at HUD, to all area and regional offices 
advising that procedures with respect to completion of the 
expected to reside table of the HAP were being revised. 
Mr. Meeker stated that applicant communities would be 
given the option of not completing the expected to reside 
table of the HAP during the first year of the program 
(A139). Appellants West Hartford and Glastonbury took 
that option and submitted zero expected to reside figures in 
their HAPs. East Hartford’s application had been ap­
proved by HUD prior to the Meeker Memorandum, and 
that town had a figure of 131 as its expected to reside need.



9

The Current Position o f HUD

As noted above, HUD chose not to appeal from the dis­
trict court ruling, filing instead a brief, amicus curiae, 
with this Court. In its brief, HUD stated, “The Secretary 
has not appealed in this ease because the result reached 
by the District Court is not inconsistent with the present 
practices adopted by HUD subsequent to the administra­
tive determination challenged in this litigation and because 
the Court’s opinion can be read in a manner consistent 
with the Department’s interpretation of its duties under 
the Act” (HUD Br., p. 3). Commenting on the district 
court’s ruling that HUD lacked the authority to waive the 
expected to reside table for year one of the community 
development program, HUD stated in its brief that it “does 
not appeal that holding” (HUD Br., p. 16). HUD also 
took specific exception to statements by West Hartford 
and Glastonbury that under the Act these appellants could 
limit, their community development and housing efforts ex­
clusively to the benefit of their own residents. The Gov­
ernment stated that such an approach would not be 
countenanced (HUD Br., p. 23, n. 12).

Following the district court ruling, HUD adopted new 
detailed regulations on how applicants are to complete 
the expected to reside table. 24 CFR 570.303(c) (2) (i) and 
(ii), as amended, 41 Fed. Reg. 11128 (March 16, 1976). 
The new regulations present a detailed formula whereby 
applicants are to derive reasonable figures for anticipating 
housing needs of persons expected to reside in the com­
munity as a result of new and expanding employment op­
portunities.

The Opinion of the Panel

The majority of the panel which heard this appeal held 
that the district court opinion should be affirmed in all re­
spects.



10

Judge Oakes, writing for the majority, distinguishing 
the instant case from this Court’s en banc ruling in Evans 
v. Lynn, 537 F.2d 571 (2d Cir. 1976), cert. den. 45 U.S.L.W. 
3489 (January 18,1977), held that the appellees in this case 
have standing to challenge the propriety of the grants to 
the appellant communities. With respect to the City of 
Hartford, Judge Oakes stated that a clear showing of in­
jury in fact was established in light of the City’s financial 
stake in the outcome of the litigation. Judge Oakes noted 
that should the funds challenged in this ease be denied to 
the appellant communities, under HUD regulations they 
would be available for reallocation within the Hartford 
metropolitan area and Hartford itself could apply and 
possibly obtain those monies. “The strong likelihood that 
Hartford will receive reallocated funds, while not an 
absolute certaintly, is therefore sufficient to establish that 
Hartford will ‘benefit, in a tangible way from the courts’ 
intervention’” (Slip Op. 1093).

Judge Oakes stated that Hartford also was plainly in­
jured by HUD’s waiver of the provisions of the 1974 Act 
requiring suburban towns to file adequate expected to re­
side figures. Observing that the expected to reside require­
ment related to the congressional goal of securing spatial 
deconcentration of lower income groups within geographic 
areas, Judge Oakes emphasized that HUD’s waiver sub­
stantially lessened the probability that suburban towns 
would use federal funds to promote that objective. The 
Court stated, “The critical importance of the HAP in the 
overall scheme of the 1974 Act is underscored by the Act 
itself and in the legislative history; it. has been recognized 
by HUD and was fully appreciated by the Court below” 
(Slip Op. 1088-89). Since Hartford clearly met the stand­
ard of a city with a. high concentration of lower income 
persons and inadequate housing, failure to promote the de- 
concentration goal in Hartford suburbs injured the city.

Since it was clear from the stated objectives of the 1974 
Act that Congress sought to ameliorate the problems con-



11

fronted by inner cities, the majority of the panel had little 
difficulty in finding that Hartford came within the zone of 
interests protected by the legislation.

Judge Oakes noted that- in light of the Evans v. Lynn, 
supra and Warth v. Seldin, 422 US. 490 (1970) decisions, a 
“more difficult issue” was presented with respect to the 
claim to standing by the low income Hartford residents. 
The majority concluded, however, that Evans and Warth 
were distinguishable from the claims of the individual ap­
pellees here as the 1974 law was clearly “designed to pro­
tect persons in the plaintiffs’ situation, and the approval of 
applications lacking legitimate ‘expected to reside’ figures 
in the HAPs appears to have directly injured the plaintiffs, 
since the HAPs were expected to lead to greater low-in­
come housing opportunities on a deconcentrated, regional 
basis . . .” (Slip Op. 1098). Furthermore, unlike the situa­
tion in Evans, reallocation of the challenged grants could 
result in Hartford obtaining funds which in turn would 
inure to the benefit of the individual appellees since such 
funds must be used primarily for the needs of low and mod­
erate income citizens.

Turning to the substantive issues, Judge Oakes referred 
to the fact that HUD in its amicus curiae brief did not take 
issue with the district court’s finding that the waiver of the 
expected to reside requirement violated the terms of the 
1974 Act. The Court noted that the Act itself could not be 
clearer and that the Secretary, while permitted to waive 
certain provisions of the application requirements, was not 
authorized to waive the HAP application provisions. “The 
conclusion is virtually inescapable that the Secretary 
lacked discretion to waive the HAP requirement” (Slip 
Op. 1101). The Court also noted that the expected to reside 
figure constituted the keystone to the spatial deconcentra­
tion objective of the Act and that the waiver of that aspect 
of the HAP form severely undermined the entire HAP.

The panel, in concluding that HUD could not waive a 
part of the HAP, agreed with the district court that West



12

Hartford and Glastonbury’s applications could not be up­
held. With respect to East Hartford, the panel again con­
curred with the district court, holding that HUD made an 
error of judgment in not independently investigating that 
appellant’s expected to reside submission. “A suburban 
town’s attempt to ascertain the housing needs of future 
residents from a waiting list for a. limited supply of public 
housing units is certainly sufficiently questionable to re­
quire some further verification” (Slip Op. 1104). Judge 
Oakes stated that the Court agreed that the Secretary 
acted in an arbitrary and capricious fashion in approving 
East Hartford’s application. Finally, Judge Oakes noted 
that the remedy fashioned by the district court was well 
within the equitable powers of the Court.

Judge Meskill in his dissenting opinion took issue only 
with the majority’s view that the plaintiffs have standing 
to sue. With respect to Hartford, Judge Meskill questioned 
the City’s financial stake in the challenged funds. “ . . . 
[Although Hartford may have proved that it would have a 
priority position in applying for reallocated funds, it lias 
failed to prove that the intervention of the federal courts 
will result in the availability of funds for reallocation” 
(Slip Op. 1109). Judge Meskill also challenged Hartford’s 
claim to standing based on the injury sustained as a result 
of HUD’s non-enforcement of the spatial deconcentration 
objective of the 1974 legislation, arguing that Hartford’s 
bleak housing situation cannot be traced to the actions of 
the defendants. Judge Meskill further stated that it is 
remote and speculative whether inclusion of the expected 
to reside figure in the HAPs will result in better housing 
in Hartford and whether the City could ‘‘properly assert 
an interest in improving its bleak housing situation in an 
action against the federal government” (Slip Op. 1111).

With respect to the low income individual plaintiffs, 
Judge Meskill stated that- while the Warth and Evans 
rulings are distinguishable from the facts in the instant



13

case, the “distinctions are not great enough, in my judg­
ment, to justify the conclusion reached by the majority” 
(Slip Op. 1112). Judge Meskill concluded that, since the 
injury suffered by the individual plaintiffs is a continuing 
one which antedated the filing of this case, “they would 
have standing only if they can allege that their injury has 
been, or will in fact be, perceptibly aggravated by the chal­
lenged action” (Slip Op. 1113). According to Judge Meskill, 
HUD’s deviation from the law did not worsen plaintiff’s 
situation—it merely left it the same.

ARGUMENT

Introduction

In the context of this en banc rehearing, counsel for ap­
pellees anticipate that it is the issue of standing which will 
most concern this Court. Accordingly, the argument in 
this supplemental brief is devoted entirely to demonstrat­
ing the panel’s decision that the appellees have standing 
is correct and entirely consistent with Warth v. Seldin, 
supra, and this Court’s en banc decision in Evans v. Lynn, 
supra. As to the other issues before the panel on appeal 
and before the Court en banc in this rehearing, the Court 
is respectfully referred to appellees’ initial brief on appeal.

There is, however, one prefatory matter suggested by the 
questions propounded to the parties by the Court. These 
questions and appellees’ responses are as follows:

1. Have the appellant Towns satisfied the “ expected 
to reside ’ ’ requirement for fiscal 1975 ?

2. If so, have the appellant Towns re-applied to the 
lower court for modification of the decree as set 
forth at page 1105 of the panel majority opinion?

3. If not, what has happened to the funds in question?

Following the issuance of the district court injunction, 
appellants Glastonbury and West Hartford filed revised



14

expected to reside figures with HUD in conjunction with 
their application for 1975 community development funds. 
East Hartford did not submit a revised HAP.

On March 7,1977, defendant HUD filed a Notice of Com­
pliance with the District Court ’s Decision of January 28, 
1976. With this notice, HUD submitted to the district 
court the revised West Hartford and Glastonbury HAPs 
and advised the court that HUD had approved the resub­
missions. On March 17, 1977, the appellees wrote to the 
district court stating that they did not intend to contest 
the revised West Hartford and Glastonbury HAPs and 
would not object to the release of the 1975 grant funds to 
those towns. To date, the district court has not acted upon 
these resubmissions. Appellees assume that all the chal­
lenged funds remain with the Treasury Department pend­
ing final resolution of this case.

The issue of mootness necessarily emerges from the cir­
cumstances to which the questions of the Court point. It 
is the position of the appellees that no portion of this case 
is moot. Certainly the issues are not moot as to East 
Hartford which has not reapplied for funds in accordance 
with the injunction. As to West Hartford and Glastonbury 
it is the appellees’ view that the issues raised in this appeal 
are of critical national importance and are capable of 
repetition. Therefore, it is the appellees’ view that this 
aspect of the case is not moot as it comes within the prin­
ciples set forth in Super Tire Engineering Co. v. McCorkle, 
416 U.S. 115 (1974) and Nebraska Press Ass’n v. Stuart, 
44 U.S.L.W. 5149 (June 30,1976).

The City of Hartford and the Low Income 
Appellees Have Standing to Sue

Both the district court and the majority of the panel 
in this Court held that the City of Hartford and the low 
income appellees have standing to bring this action. I t was



15

concluded that appellees suffered both injury in fact as a 
result of HUD’s failure adequately to enforce the pro­
visions of the 1974 Act and that they came within the zone 
of interest protected by that legislation. It is the appellees’ 
position that these conclusions are legally sound and are 
entirely consistent with the decisions in Evans and Warth. 
For this Court to adopt an opposite view would have the 
effect of subverting the goals and purposes set by Congress 
in the 1974 legislation.

1. The City of H artford

Judges Oakes and Smith agreed with the District Court 
that the City of Hartford satisfied the “injury in fact” 
standard required to establish standing to sue. See, Asso­
ciation of Data Processing Service Organizations, Inc. v. 
Camp, 397 U.S. 150 (1970); Evans v. Lynn, supra. Hart­
ford’s injury and interest in this matter relates to the 
City’s financial stake in any reallocation of the challenged 
community development grants and in the loss of benefits 
expected to flow from the 1974 Law with respect to securing 
relief for inner city areas through geographic deconcentra­
tion of low cost housing.

There can be no doubt that Hartford has a clear statu­
tory claim to any community development funds which may 
be reallocated as a result of the disapproval of the grants 
to the appellant towns. Pursuant to 42 U.S.C. § 5306(e) 
reallocation of funds made available as a result of the 
disapproval of community development grant applications 
are to be on a first, priority basis to any metropolitan area 
in the same state. HUD regulations further refine the 
priority of reallocation of such funds to provide that 
distributions be first to the same metropolitan area where 
the funds were initially designated. 24 CFR § 570.409(d) 
(!)•

Appellants contend that Hartford’s position with respect 
to securing reallocated funds is no greater than any other



16

municipality within the Hartford metropolitan area. In 
reality, Hartford’s claim to such funds is- an overriding 
one within the region and its posture is clearly unique. As 
was shown in appellees’ earlier brief, there is nothing in 
the record to support the claim that towns in the Hartford 
standard metropolitan statistical area (SMSA) other than 
those that applied for the 1975 funds, would even qualify 
for Title I funding. Significantly, as. Judge Oakes noted, 
“Appellants’ argument . . . does not recognize that HUD 
is unlikely to reallocate funds to localities that did not 
apply originally for community development funds in 1975 ; 
with these localities and the seven towns enjoined below 
eliminated from the reallocation pool, only Hartford and 
two other towns in the SMSA would remain eligible” 
(Slip Op. 1092).

In his dissent, Judge Meskill, in an effort to minimize the 
City’s financial interest claim, argued that under the terms 
of the district court injunction, the appellant towns may 
complete their 1975 HAPs, reapply for, and obtain their 
1975 grants. From this he concludes that, nothwithstand- 
ing Hartford’s priority position in terms of securing re­
allocated funds, it is extremely unlikely that the City will 
ever see any of these dollars. Judge Meskill’s reasoning 
leads, however, to the imposition of a most onerous stand­
ard. Certainly, a party need not show an absolute certainty 
of obtaining monies for which it stakes a claim before the 
courts will recognize a sufficient interest to grant standing. 
The City’s interest should not be held to depend upon 
conclusive proof that the monies from the challenged grants 
will eome to it by virtue of the litigation. The issue is 
whether Hartford has a meaningful potential financial 
claim at the outset of the litigation. In this regard, the 
Majority Leader of the Hartford Court of Common Coun­
cil advised the district court, by way of affidavit in response 
to a motion to dismiss for lack of standing, that Hartford 
would apply for any of the 1975 community development 
funds that ultimately may become available as a result of 
this case. See, 408 F.Supp. at 885-886.



17

Hartford also meets the injury in fact test in relation to 
HUD’s non-enforcement of the provisions of the 1974 Act. 
The Act was designed to promote spatial deconcentration 
of lower income persons. By HUD’s non-enforcement, 
Hartford was denied the benefits of this deeoncentration. 
As noted earlier, the expected to reside table of the HAP 
is the sole mechanism for promoting the congressional 
goal of spatial deconcentration of lower income housing 
opportunities in metropolitan areas. The spatial decon­
centration objective is a direct congressional response to 
the fact that inner city areas are inundated with the social 
problems of housing deterioration, inadequate resources 
and a population suffering from economic dislocation. The 
HAP is the vehicle by which eventual construction of lower 
cost housing in suburban communities will be accomplished 
and by which the pressure on the inner cities will be re­
lieved. The Title I  provision for community development 
block grants is the available resource by which local com­
munities are to be encouraged to participate in federal 
housing programs.

When HUI) approved Title I funds for the appellant 
communities without requiring completion of the HAP ex­
pected to reside table, the appellant towns were relieved of 
their obligation to recognize a housing need for persons 
residing outside their jurisdictions. The operative means 
for accomplishing the spatial deconcentration goal and for 
lessening the onerous burden on the cities was thereby 
administratively negated. In the instant case, Hartford 
would have been the beneficiary of a program Avhereby its 
suburbs would have involved themselves in the process of 
deeoncentration of lower income citizens.

Also it should be recognized that if one of the appellant 
communities is either denied its community development 
entitlement grant or determines not to partake in the pro­
gram, Hartford itself would benefit from these reallocated 
funds even if the funds go to another municipality in the 
region. Any suburban town which receives these reallo-



IS

cated funds will have been required to submit in its HAP 
an adequate expected to reside figure and commitment to 
low cost housing. If the statutory requirements are met, 
these reallocated monies will be used primarily for low and 
moderate income citizens and towards promoting decon­
centration of low cost housing opportunities. Thus, Hart­
ford and its lower income citizens will under any circum­
stance benefit from strict enforcement of the statutory 
directives.

There simply is no question but that Hartford comes 
within the zone of interest protected by the 1974 legislation. 
The fact that Congress stressed the social problems facing 
cities arising out of the pattern of “concentration of per­
sons of lower income in central cities,” 42 U.S.C. § 5301(a) 
(1), and emphasized an overall goal of revitalizing cities 
with the primary objective of developing “viable urban 
communities as social, economic and political entities . . .,” 
42 U.S.C. § 5301(c), underscores the validity of the district 
court’s conclusion that the statute involved here was in­
tended in substantial part to ameliorate problems faced 
by the City of Hartford (A47-48).

2. The Low Income A pp ellees

Appellees Miriam Jordan and Fanny Mauldin are low 
income residents of Hartford, who are confronted with 
housing problems and have been attempting, without suc­
cess, to locate low cost housing units in suburban areas of 
Hartford. As Judge Oakes stated, these appellees easily 
meet the zone of interest test of the 1974 Act because 
the law was intended “to benefit principally ‘persons of low 
and moderate income,’ a phrase repeated throughout 42 
U.S.C. § 5301(c) . . . ” (Slip Op. 1097). Moreover, HUD’s 
violation of the requirements of the 1974 Act related 
specifically to completion of a table which is an enumeration 
of the housing needs of lower income persons who cur­
rently are excluded from residing in suburban communities 
and who would choose to live in such areas.



19

In light of the Warth and Evans decisions, the more 
difficult issue faced by the individual appellees relates to 
their claim of an injury in fact. Judge (hikes distinguished 
Warth and Evans, however, by pointing to the fact that 
the low income appellees are asserting “a specific violation 
of a statute, not a generalized claim that a law is uncon­
stitutional . . . ” (Slip Op. 1098). Furthermore, the 
statute involved here was specifically designed to promote 
the interests of low income persons in need of alternative 
housing opportunities and would thus provide a tangible 
benefit to these appellees in that either there will be an 
impetus for creation of new low cost housing in the appel­
lant suburbs or in other Hartford suburban communities, 
or additional funds may well be available to the City of 
Hartford to be used in projects principally for low and 
moderate income persons.

3. T he W arth and Evans Decisions are Distinguishable  
in Light o f th e Clearly A rticulated  Congressional Policy in 
the 1974 Legislation

The argument that appellees lack standing is based 
largely on the contention that the benefit which will flow 
to them from enforcement of the HAP provisions is specu­
lative. Those adopting this view read the Warth and 
Evans rulings as foreclosing access to the courts to per­
sons whose claim to a benefit from proposed litigation is 
speculative. See also, Simon v. Eastern Kentucky Wel­
fare Rights Organization, 48 L,Ed.2d 450 (1976). Judge 
Meskill maintains in his dissent that the potential im­
pact of the 1974 Law is questionable. He argues that 
HUDj’s failure to ensure that the appellant towns com­
plete the expected to reside tables in their applications 
for Title I funds “did not make the plaintiffs’ situation 
worse, blit merely left it the same. The ‘waiver’ of the 
requirement by HUH did not have a negative effect. It 
merely failed to produce the hoped-for positive effect” 
(Slip Op. 1113). Accordingly, the appellees’ claimed in-



20

jury is not based on a present injury but on a denial of 
“ prospective benefit.”

Under the above standard, an aggrieved low income per­
son would not have standing to ensure administrative im­
plementation of a eongressionally created remedy, unless 
it were certain that judicial intervention would relieve his 
or her plight. Thus, Judge Meskill questions Congress’ 
judgment in enacting the HAP procedures. “It is naive 
to imagine that plaintiffs’ lot will be perceptibly improved 
merely by coercing the defendant towns into including 
accurate ‘expected to reside’ figures in their Block Grant 
applications. The ‘expected to reside’ figure lacks the 
magical power that would be required to produce such 
a result” (Slip Op. 1114). And:

It is true, of course, that Congress expects, or at least 
hopes, that the “ expected to reside” figure will have 
some impact. However, legislative expectations are 
not necessarily dispositive in determining whether 
those expectations are speculative. Slip Op. 1114, n. 5

Appellees submit that such inquiry into the effectiveness 
of a congressional remedy, especially in the context of the 
detailed goals and requirements set forth in the 1974 legis­
lation, could well constitute the fulfillment of the silent 
Executive veto against which Judge Gurfein warned in his 
dissent in the Evans case.

There is a need for judicial action where Congress 
has mandated benefits for a class and where an agency 
of the Executive Branch fails to carry out that legis­
lative mandate. The contrary would give the Execu­
tive a silent veto not provided in the Constitution. 
537 F.2d at 611.

Appellees do not believe it is the intent of either the 
Evcms or Warth rulings to immunize an agency’s disre­
gard for the law. The Supreme Court in Warth in fact was



21

careful to note that it did not intend to impinge upon 
Congress’ prerogatives. Justice Powell stated in Worth 
that, “Congress may create a statutory right or entitlement 
the alleged deprivation of which can confer standing to sue 
even where the plaintiff would have suffered no judicially 
cognizable injury in the absence of the statute.” 422 U.S. 
at 513-514. See also, Linda R.S. v. Richard D., 410 U.S. 
614, 617 n. 3 (1973); Trafficante v. Metropolitan Life Insur­
ance Co., 409 U.S. 205, 212 (1973). Thus, the Supreme 
Court has instructed that the deprivation of the right to 
the legislative remedy itself constitutes injury in fact. 
The Warth court dealt only with an alleged violation of the 
Equal Protection Clause of the Fourteenth Amendment, 
ruling the complaint failed to assert “any right of action 
under the 1968 Civil Rights Act, nor can the complaint 
fairly be read to make out any such claim.” 422 U.S. 
at 513.

Furthermore, it is clear that the Supreme Court, notwith­
standing the imposition of additional barriers to establish­
ing standing, adheres to the view that, “Where statutes 
are concerned, the trend is toward enlargement of the class 
of people who may protest administrative action. The 
whole drive for enlarging the category of ‘aggrieved per­
sons’ is symptomatic of that trend.” Association of Bata 
Processing, Inc. v. Camp, 397 U.S. 150, 154 (1970). See 
also, United States v. SCRAP, 412 U.S. 669 (1973); Simon 
v. Eastern Kentucky Welfare Rights Organization, supra; 
Arlington Heights v. Metropolitan Housing Development 
Corp., 45 U.S.L.W. 4073 (January 11, 1977).

In Evans, this Court did deal with an alleged violation 
of a statutory provision—the affirmative action require­
ment of the Fair Housing Law. There simply is no com­
parison, however, between the statutory remedy considered 
in Evans and that presented by the 1974 Act. The affirma­
tive action requirement of the Fair Housing Law is an 
open-ended directive to administrative agencies to promote 
the general goal of equal housing opportunity. No detail



22

is provided as to how HUD should administer its programs 
to comply with the affirmative action requirement. The 
plaintiffs in Evans were, therefore, in the position of press­
ing their view of what constituted the minimum actions 
required of HUD and the Department of the Interior to 
comply with the generalized goal of affirmative action.*

There is no similar lack of precision concerning the 
congressional intent in the instant case. Appellees here do 
not propose to advise HUD of actions it should take to 
create a meaningful remedy; they seek only administrative 
compliance with clearly articulated statutory directives. 
Appellees seek only to ensure enforcement of policies 
already legislatively mandated.

There are additional compelling factors which distin­
guish Evans from the instant case. Evans clearly did not 
deal with the standing of a city to challenge federal grants. 
In fact, the district court in Evans (376 F.Supp. 327, 333 
(S.D.N.Y. 1974)) indicated that a municipality perhaps 
would have standing to challenge a grant to a neighboring 
.jurisdiction, raising the same issues involved in the Evans 
case. Also, Chief Judge Kaufman noted in his dissent in 
Evans that even under the majority decision in that case, 
“an inner city near a town receiving a HUD grant may

* The plaintiffs in Simon v. Eastern Kentucky Welfare Rights 
Org., supra, were confronted with a similar lack of specificity in 
terms of legislative directives. In Simon, the Supreme Court held 
that several indigent persons lacked standing to challenge a change 
in an Internal Revenue Service ruling. The revised ruling per­
mitted non-profit hospitals to retain tax-exempt status while per­
mitting only emergency room service to indigents. The plaintiffs 
in Simon contended that non-profit hospitals should be required to 
provide in-hospital care as a condition for retaining tax-exempt 
status as a charitable institution. The Simon plaintiffs, like the 
Evans plaintiffs, found themselves in the posture of arguing what 
they thought was required of an administrative agency in terms 
of compliance with a generalized congressional purpose. The 
Supreme Court noted that the Internal Revenue Code did not de­
fine the term charitable and “ the status of each non-profit hospital 
is determined on a case-by-ease basis by the IRS.” 48 L.Ed. 2d 
at 455.



23

have standing to challenge the grant. Indeed, a town which 
unsuccessfully applied for a grant might, by analogy with 
those cases granting competitor standing, be allowed to 
sue.” 537 F.2d at 611, n. 10.

Both majority opinions in Evans stated a concern that 
the plaintiff class would not benefit from the injunctive 
relief requested. Thus, Judge Mansfield, in his concur­
rence in Evans, questioned whether the challenged monies 
would be available to assist the Evans plaintiffs as HUD 
would in all likelihood be free to reallocate the money per­
haps to aid construction of sewer and recreation projects 
as far away as San Francisco. 537 F.2d at 598. Similarly, 
Judge Moore, pointed out that under the plaintiffs’ claim, 
“ had the grants not been approved, the monies could con­
ceivably have gone to some other, as yet totally imaginary 
project in the County which might have had the result of 
making more housing available to them.” 537 F.2d at 595 
(emphasis in original).

By contrast, appellees have shown how the monies in 
question if reallocated must on a priority basis stay within 
the Hartford metropolitan area. Further, appellees seek 
enforcement of a legislative scheme designed to promote 
actual construction of lower cost housing on a deconcen- 
trated basis for those now trapped in poor housing in inner 
cities. Thus by virtue of the HAP procedure, Title I grant 
recipients must provide commitments and undertake plan­
ning for construction of low cost housing. In completing 
the HAP expected to reside table, a city or town must 
recognize that a portion of its housing need relates to the 
needs and aspirations of persons not currently living in 
that community and the HAP must set goals to meet that 
need. The applicant is then required to specify areas in 
its community where low cost housing units will be built, 
HUD regulations providing that a HAP must indicate:

the general locations, by census track (or enumera­
tion districts in those jurisdictions where a census



24

track includes a substantial area, such as an entire 
community) of proposed new housing construction 
units or projects and substantial rehabilitation units 
or projects for lower-income persons on maps as called 
for in paragraph (b)(2) of this section . . .  24 C.F.R. 
570.303(c)(4).

Since the HAP is project oriented the low income ap­
pellees’ claim to standing in the instant case is more 
similar to that of the low income minority plaintiff in 
Arlington Heights v. Metropolitan Housing Corp., 45 
U.S.L.W. 4073 (January 11, 1977), who was found to have 
standing, than to the low income plaintiffs in the Warth 
case. In Warth, the Supreme Court was troubled by the 
speculative aspects of the remedies sought in that the 
plaintiffs could not be assured that a declaration that 
Penfield, New York’s zoning laws were unconstitutional 
would lead to the construction of low cost housing. The 
Warth plaintiffs did not include an entity capable of ac­
tually following through with development of low cost 
projects and were, therefore, dependent upon the actions 
of third parties not before the court. In Arlington Heights, 
the plaintiff also could not show with absolute certainty 
that the project in question would be built as the developer 
might at some point, even after obtaining necessary rezon­
ing, be unable to proceed with the actual development of 
the housing. However, potential for construction was the 
critical distinguishing factor.

Obviously, there is a degree of speculation as to whether 
specifying locations and projects in a suburban commu­
nity’s HAP will lead to actual construction of those 
projects. However, the involvement of the municipality 
itself in the process, by designating locations where the 
community will sanction and promote low cost housing, 
substantially alters the equation and distinguishes the facts 
here from those in Wartli. The legislative design of the



25

1974 Act clearly establishes a remedial framework suffi­
cient to overcome the Warth and Evans problems.

The appellants are thus in error when they argue, as 
they have in their most recent brief, that Evans must be 
reversed for the appellees to be found to have standing 
in the instant case. Rather, a reversal of the district court 
decision would represent a significant departure from 
Evans and would involve the imposition of an extraordi­
nary new barrier to the right to challenge agency non- 
compliance with federal laws.

CONCLUSION
For the foregoing reasons, and for the reasons set 

forth in the appellees’ first brief, the decision of the 
district court should be affirmed in all respects.

Respectfully submitted,

R ichard F. Bellman 
Suburban Action Institute 
351 Broadway
New York, New York 10013

Mary R. H ennessey 
Barry S. Zitser 
550 Main Street 
Hartford, Connecticut 06106

Attorneys for Plaintiffs-Appellees



UNITED STATES COURT OF APPEALS 
F ob the Second Circuit

Nos. 76, 198-99—-September Term, 1976.
(Argued September 16, 1976 Decided December 23, 1976.) 

Docket Nos. 76-6049, -6050, -6059

City of H artford, Miriam J ordan, and F annie Mauldin,

Plaintiffs-Appellees, 
v.

T owns of Glastonbury, W est H artford, 
and E ast H artford,

Defendants-Appellants.

B e f o r e :
Smith , Oakes and Meskill,

Circuit Judges.

Appeal from a judgment of the United States District 
Court for the District of Connecticut, M. Joseph Blumen- 
feld, Judge, enjoining appellants from drawing upon or 
spending community development grant funds awarded 
under the Housing and Community Development Act of 
1974, on the ground that the Department of Housing and 
Urban Development had unlawfully approved grant ap­
plications lacking valid estimates of the number of lower 
income persons “expected to reside” in the community, 
42 U.S.C. § 5304(a)(4)(A) (Supp. Y 1975).

Affirmed.

1081



R a l p h  G. E lliot, Hartford, Conn., for Appel­
lant Town of Glastonbury.

J ohn J. L angenbach, West Hartford, Conn., 
for Appellant Town of West Hartford.

J ames A. W ade, Hartford, Conn., for Appellant 
Town of East Hartford.

R ichard F. Bellman, New York, N.Y. (Mary 
R. Hennessey) and Barry S. Zitser, Hart­
ford, Conn., of counsel), for Appellees.

A nthony J. Steinmeyer, Attorney, Department 
of Justice, and Robert P. vom Eigen, Attor­
ney, Department of Housing and Urban De­
velopment (Rex E. Lee, Assistant Attorney 
General, Peter C. Dorsey, United States 
Attorney, Morton Hollander, Attorney, De­
partment of Justice, Arthur J. Gang, Attor­
ney, Department of Housing and Urban De­
velopment, of counsel), for Secretary of 
Housing and Urban Development as Amicus 
Curiae.

Oakes, Circuit Judge:

The history of federal aid to the beleagured cities of the 
United States has seen a transition from urban renewal to 
the Model Cities Program, which expanded categorical 
grants for urban needs, to general revenue sharing in the 
1970s, with accompanying block grants in general func­
tional areas, such as manpower training, education and law 
enforcement. One of the more recent block grant programs 
is that for “community developments grants,” authorized

1082



by the Housing and Community Development Act of 1974, 
§ 103, 42 U.S.C. § 5303 (Supp. V 1975). This appeal, appar­
ently the first of its kind to be decided under the 1974 Act,1 
requires us to decide whether the Department of Housing 
and Urban Development (HUD) improperly approved cer­
tain applications for community development grants.

The City of Hartford, Connecticut, and two of its low- 
income residents have sued to enjoin seven suburban com­
munities from receiving or expending grants approved by 
HUD under the Act, principally on the ground that the 
grant applications either contained no estimate, or an arbi­
trary, wholly inaccurate estimate, of the number of lower 
income persons “expected to reside” within the community, 
an apparent violation of 42 U.S.C. § 5304(a) (4) (A) (Supp. 
Y 1975). A permanent injunction was entered by the United 
States District Court for the District of Connecticut, M. 
Joseph Blumenfeld, Judge. City of Hartford v. Hills, 408 
F. Supp. 889 (D. Conn. 1976). The towns of Glastonbury, 
West Hartford and East Hartford appeal; HUD does not 
appeal, nor do the other towns that were originally defen­
dants and have been enjoined by the order below. We 
affirm. 1

1 Hills v. Gautrcaux, 44 U.S.L.W. 4480 (U.S. Apr. 20, 1976), was an 
attack upon ITUD housing policies generally, and the remedial order 
under review was issued in 1909, long before passage of the Housing 
and Community Development Act. The Gautrcaux Court did refer to 
the 1974 Act, however, id. at 448(5-87 & n.21, including quotation of 
the Title I objective of "promoting greater choice of housing oppor­
tunities and avoiding undue concentration of assisted persons," 42 
U.S.C. § 5304(a) (4) (C) (ii), and citation of the district court's opinion 
in the instant case. 44 U.S.L.W. at 4487 n.21.

There is a district court decision dealing with alleged deficiencies in 
a grant application submitted under Title I of the Act, the court hold­
ing that the plaintiffs had produced insufficient evidence that the ap­
plication had been improperly approved. Ulster County Community Ac­
tion Comm., Inc. v. Koenig, 402 F. Supp. 986, 990 (S.D.N.Y. 1975).

1083



I .  F acts

A. The Structure of the Act

Title I of the Housing and Community Development 
Act of 1974 established a new system of federal assistance 
for community development activities, to be administered 
by HUD, and consolidated and superseded previous cate­
gorical programs,2 each of which had specified purposes 
and particular statutory and administrative restrictions. 
Title I, in short, was intended to create a streamlined 
program dealing comprehensively with urban problems 
previously addressed in a piecemeal fashion. See S. Rep. 
No. 93-693, 93d Cong., 2d Sess. 1-2, 48-49, reprinted in 
[1974] U. S. Code Cong. & Ad. News 4273, 4273-74, 4318-19; 
H.R. Rep. No. 93-1114, 93d Cong., 2d Sess. 2-3 (1974). The 
community development grants authorized by the Act may 
be used by localities in a variety of ways related to im­
provement of the physical and economic environment, such 
as for the acquisition of blighted land and historic sites, 
the construction or improvement of street lights and play­
grounds, the enforcement of housing codes in deteriorating 
areas, and the development of community and management 
planning capabilities. 42 U.S.C. § 5305 (Supp. V 1975); 
see 24 C.F.R. § 570.200(a) (1976). The Title I funds may 
not be used, however, for the construction of housing or 
the payment of housing allowances, with minor exceptions 
not relevant here, id. § 570.201(f), (g).s These matters are

The programs consolidated included ones for urban renewal, Model 
Cities, water and sewer facilities, and open-space land. See 42 [7.S.C. 
§ 5316; City of Hartford v. Hills, 408 F. Supp. 889, 897 n.27 (J) Conn 
1976).

The exceptions relate to use of funds for so-called "last resort 
housing,” see 24 C.F.R. §43.1 et seq. (1976), and for relocation as­
sistance payments for persons displaced by activities funded by grant 
monies, see id  § 570.200(a) (11).

1084



covered elsewhere in the Act, particularly in Title II, codi­
fied at 42 U.S.C. § 1437 et seq. (Supp. V 1975).

In terms of administrative review, Title I represents a 
compromise between the Administration’s revenue sharing 
approach, under which communities would have automatic­
ally received funds on the basis of objective needs criteria, 
without any application or review process, and the ap­
proach favored by some members of Congress, which would 
have imposed substantial federal preconditions to grant 
awards and established elaborate application and review 
procedures. See generally Fishman, Title I of the Housing 
and Community Development Act of 1974: Neio Federal 
and Local Dynamics in Community Development, 7 Urban 
Law. 189, 191-200 (1975). The Act requires that communi­
ties apply to HUD, 42 U.S.C. § 5304(a) (Supp. V 1975), 
but limits HUD’s review power in several ways. Cities and 
counties are declared “entitled” to the grant funds, id. 
§ 5306(a), and an application is deemed approved 75 days 
after receipt by HUD unless the Secretary gives the appli­
cant “specific reasons for disapproval,” id. § 5304(f). The 
Secretary must approve an application, moreover, unless 
she determines, inter alia, that the applicant’s description 
of community “needs and objectives is plainly inconsistent 
with [generally available] facts or data,” id. § 5304(c).4 * 1

4 42 U.S.C. § 5304(c) (Supp. V 3975) provides in full:
The Secretary shall approve an application for an amount which 

does not exceed the amount determined in accordance with section 
5306(a) of this title unless—

(1) on the basis of significant facts and data, generally avail­
able and pertaining to community and housing needs and objec­
tives, the Secretary determines that the applicant’s description of 
such needs and objectives is plainly inconsistent with such facts 
or data; or

(2) on the basis of the application, the Secretary determines that 
the activities to be undertaken are plainly inappropriate to meeting

1085



Finally, with regard to requirements that an applicant 
comply with certain civil rights laws and provide for citizen 
participation in the grant planning process, the Secretary 
may rely upon the “satisfactory assurances” of the appli­
cant, rather than make an independent investigation. Id. 
§ 5304(a)(5), (6).

While community development grants may not be used 
for housing, Title I  was designed in part to “ [foster] the 
undertaking of housing and community development activ­
ities in a coordinated and mutually supportive manner.” 
Id. § 5301(d) (4). Moreover, specific objectives of the Title 
include provision of “a decent home,” especially for those 
with low and moderate incomes, id. § 5301(c) (3), and “the 
spatial deconcentration of housing opportunities for per­
sons of lower income,” id. § 5301(c) (6).5 In accordance

the needs and objectives identified by the applicant pursuant to 
subsection (a) of this section; or

(3) the Secretary determines that the application does not 
comply with the requirements of this chapiter or other applicable 
law or proposes activities which are ineligible under this chapiter.

5 42 U.S.C. § 5301(c) (Supp. V 1975) provides in full:
The primary objective of this chapter is the development of 

viable urban communities, by providing decent housing and a 
suitable living environment and expanding economic opportunities, 
principally for persons of low and moderate income. Consistent 
with this primary objective, the Federal assistance provided in this 
chapter is for the support of community development activities 
which are directed toward the following specific objectives—

(1) the elimination of slums and blight and the prevention of 
blighting influences and the deterioration of property and neigh­
borhood and community facilities of importance to the welfare of 
the community, principally persons of low and moderate income;

(2) the elimination of conditions which are detrimental to health, 
safety, and public welfare, through code enforcement, demolition, 
interim rehabilitation assistance, and related activities;

(3) the conservation and expansion of the Nation’s housing 
stock in order to provide a decent home and a suitable living en­
vironment for all persons, but principally those of low and moderate 
income;

1086



with these goals, the grant application submitted to HUD 
must include a “housing assistance plan” (HAP) that 
“accurately surveys the condition of the housing stock in 
the community and assesses the housing assistance needs 
of lower-income persons . . . residing in or expected to 
reside in the community . . . id. § 5304(a) (4) (A), with “a 
realistic annual goal” specified for housing assistance, id. 
§ 5304(a) (4) (B).4 5 6 7 The housing needs detailed in the HAP

(4) the expansion and improvement of the quantity and quality 
of community services, principally for persons of low and moderate 
income, which are essential for sound community development and 
for the development of viable urban communities;

(5) a more rational utilization of land and other natural re­
sources and the better arrangement of residential, commercial, in­
dustrial, recreational, and other needed activity centers;

(6) the reduction of the isolation of income groups within com­
munities and geographical areas and the promotion of an increase 
in the diversity and vitality of neighborhoods through the spatial 
deconcentration of housing opportunities for persons of lower in­
come and the revitalization of deteriorating or deteriorated neigh­
borhoods to attract persons of higher income; and

(7) the restoration and preservation of properties of special value 
for historic, architectural, or esthetic reasons.
I t is the intent of Congress that the federal assistance made avail­
able under this chapter not be utilized to reduce substantially the 
amount of local financial support for community development ac­
tivities below the level of such support prior to the availability of 
such assistance.

6 42 fJ.S.C. 5 5.104(a)(4) (Supp. V 1975) provides in full (emphasis
added):

No grant may be made pursuant to section 5306 of this title 
unless an application shall have been submitted to tbe Secretary 
in which the applicant—

(4) submits a housing assistance plan which—
(A) accurately surveys the condition of the housing stock in the 

community and assesses the housing assistance needs of lower- 
income persons (including elderly and handicapped persons, large 
families, and persons displaced or to be displaced) residing in or 
expected to reside in the community,

(B) specifies a realistic annual goal for the number of dwelling 
units or persons to be assisted, including (i) the relative proportion

1087



can then be met with funds available under Title II of the 
Act. Thus (and this is crucial to the case) the HAP serves 
as the vehicle tying together the community development 
and housing assistance portions of the Act. in furtherance 
of the Act’s overall goal of coordination of federal urban 
efforts, see id. % 5301(d). The critical importance of the 
HAP in the overall scheme of the 1974 Act is underscored 
in the Act itself7 and in the legislative history ;* 7 8 it has been

of new, rehabilitated, and existing dwelling units, and (ii) the sires 
and types of housing projects and assistance best suited to the 
needs of lower-income persons in the community, and

(C) indicates the general locations of proposed housing for 
lower-income persons, with the objective of (i) furthering the re­
vitalization of the community, including the restoration and re­
habilitation of stable neighborhoods to the maximum extent pos­
sible, (ii) promoting greater choice of housing opportunities and 
avoiding undue concentrations of assisted persons in areas contain­
ing a high proportion of low-income persons, and (iii) assuring the 
availability of public facilities and services adequate to serve pro­
posed housing projects[.]

7 42 TJ.S.C. § 5304(b) (3) and (4) (Supp. V 1975) together allow the 
Secretary of HUD, under certain conditions, to waive or otherwise dis­
pense with all of the application requirements in subsection (a) except 
the housing assistance plan requirement. The district court observed that 
this exclusion showed "the pivotal Tole [Congress] intended for the 
HAP." 408 F. Supp. at 898; see id. at 901.

8 The House Report states:
This [housing assistance plan] requirement, together with pro­

visions in title I I  of the bill which allocate housing assistance 
funds to communities based, in part, on the housing needs specified 
in these plans, will make it possible for communities to plan unified 
community development and housing programs. For the first time, 
after nearly three decades, of Federal aid for housing and com­
munity development, communities will be able to coordinate the 
location of new housing units with existing or planned public facil­
ities and services, such as schools, transportation, police and fire 
protection, recreational facilities, and job opportunities. The com­
mittee bill will put an end to a system of support for community 
development and housing activities which recognizes their close re­
lationship but fails to provide the mechanisms necessary to permit 
them to be undertaken on a unified basis.

H.R. Rep. No. 93-1114, 93d Cong., 2d Sess. 3 (1974).

1088



recognized by HUD9 and was fully appreciated by the 
court below.10

B. Appellants’ Grant Applications

The three suburban towns here involved submitted appli­
cations for community development grants to HUD in the 
spring of 1975, after having first sent the applications “for 
review and comment” to the Hartford region’s areawide 
planning agency, the Capital Region Council of Govern­
ments (CRCOG), pursuant to 42 TT.S.C. § 5304(e) (Supp. 
V 1975). The CRCOG received adverse comments on the 
HAP and other aspects of the applications from the City 
of Hartford and a Hartford civil rights group, and it for­
warded these comments to IIUD. The HUD regional direc­
tor in Boston, in a late April memorandum to the director 
of HUD’s Hartford office, found the City’s comments in 
particular to be “well documented and of a very serious 
nature.” In addition, the area director of HITD’s Equal 
Opportunity Division recommended disapproval of all 
three applications.

While the Hartford office was in the process of reviewing 
the applications in light of these criticisms, it received a 
May, 1975, memorandum from IIIID’s Assistant Secretary 
for Community Planning and Development. That memo­
randum recognized that both grant applicants and HUD 
were having difficulty estimating the number of low-income 
persons “expected to reside in-the community,” an estimate

9 The "Notice of Proposed Rulemaking” that introduced part of the 
proposed HDD Title I  regulations termed the HAP "one of the most 
significant parts of the community development application process” and 
mentioned its "significant impact on various aspects of HDD-assisted 
housing program activities.” 41 Fed. Peg. 2348 (3976).

30 408 F. Supp. at 898.

1089



central to the HAP, see note 6 supra, and suggested pos­
sible sources of data from which HUD might develop its 
own figures. It also gave applicants an option that eventu­
ally led to this case: instead of developing its own “ex­
pected to reside” figure or accepting HUD’s, a locality 
could obtain approval of its application simply by “indi- 
eatfing]” the steps it would take to “identify a more appro­
priate needs figure by the time of its second year submis­
sion.” The memorandum was quite explicit as to the mean­
ing of this option: HUD would not require the adoption of 
any “expected to reside” figure on first year grant applica­
tions such as those in issue here.

Appellants West Hartford and Glastonbury, along with 
several other towns, accepted the option offered by HUD 
and thus submitted zero figures for the “expected to reside” 
portion of the HAPs in the final applications approved by 
HUD.11 The two towns were granted $999,000 and $910,000 
respectively. East Hartford’s application had been ap­
proved prior to receipt of HUD’s May memorandum, and 
it contained an “expected to reside” figure of 131, derived 
exclusively from the waiting list of the town’s public hous­
ing authority. East Hartford was granted $440,000. 11

11 Appellants have raised the fact, that Hartford itself, in applying for 
community development funds (which it received), also submitted a 
zero "expected to reside" figure in its HAP. Since Hartford’s applica­
tion was never challenged on this ground, however, its "expected to 
reside” figure is irrelevant to the claim against appellants. There was 
testimony before the district court, moreover, indicating that Hartford’s 
zero figure was not necessarily a result of HDD’s May memorandum, 
but was rather based upon consideration of current and projected pop 
ulation trends. Hartford’s Director of Planning stated that Hartford’s 
population was declining, so that, while its application listed a large 
number of low-income persons residing in the city, it was expected that 
any new low-income residents would be offset numerically by others 
leaving Hartford for the suburbs, where the population was increasing. 
He thus concluded that Hartford’s zero figure for new low-income res­
idents was both "fair” and "realistic.”

1090



I I .  S t a n d in g

Appellants challenge the standing of both the City of 
Hartford and the low-income plaintiffs to seek the injunc­
tion granted by the court below. The district court con­
cluded that both had standing, 408 F. Supp. at 893-97, but 
it lacked the benefit of our en banc decision in Evans v. 
Lynn, 537 F.2d 571, 589 (2d Cir. 1970), petition for cert, 
filed, 45 U.S.L.W. 3346 (U.S. Oct. 29, 1976), which is 
primarily relevant to the claim of the low-income plain­
tiffs.12 We find Evans to be distinguishable from the in­
stant case and affirm the district court’s decision upholding 
the standing of all appellees.

A. The City of Hartford
The standing of the City here is dependent upon a 

showing both that the City has been injured “in fact” by 
HUD’s approval of the challenged grants and that the 
interest the City seeks to protect is one “arguably within 
the zone of interests to be protected . . .  by the statute.” 
Association of Data Processing Service Organisations, Inc. 
v. Camp, 397 U.S. 150, 152-53 (1970); see Evans v. Lynn, 
supra, 537 F.2d at 592. Since the injury in fact test must 
be met at the threshold, 537 F.2d at 592; see K. Davis, 
Administrative Law of the Seventies, § 22.02-1, at 487 
(1976), we turn first to its application to the City.

12 The Evans plaintiffs were low-income persons, and thus, in view of 
the importance of a case's particular facts in resolving standing issues, 
see The Supreme Court, 1974 Term, 89 Harv. I,. Rev. 47, 189 & n.7 
(1975), Evans has little direct relevance to the question of the City’s 
standing. The district court in Evans, in denying standing, expressly 
stated that a city “would be in a peculiarly appropriate position” for 
standing in a case of this sort, Evans v. Lynn, 376 P. Supp. 327, 333 
(S.D.N.Y. 1974) (dictum), aff'd, 537 F.2d 571, 589 (2d Cir. 1976) (en 
banc), a proposition with which Chief Judge Kaufman has concurred, 
537 F.2d at 611 n.10 (dissenting opinion). Of course, as the following 
discussion makes evident, Evans does provide some general guideposts 
for our decision with regard to the City's standing.

1091



The district court found that Hartford had been injured 
by HUD’s approval of the grants because, if the grants 
had been disapproved, the amounts allocated for them 
would have been reallocated, pursuant to 42 U.S.C. 
§ 5306(e) (Supp. V 1975), to other Connecticut “metro­
politan areas” (defined in id. v 5302(a)(3) to mean “stan­
dard metropolitan statistical areas [SMSAs] as estab­
lished by the Office of Management and Budget”), among 
which Hartford would have had a priority position. 408 
F. Supp. at 894-95. Appellants argue that, under the 
statute as modified by HUD regulations, 24 C.F.R. 
§ 570.409(f) (1) (1976), Hartford’s position is no better 
than that of all other towns—we would add, except those 
with disapproved applications—in the Hartford SMSA. 
But this demonstrates at most that Hartford’s financial 
stake may not be as large as the sum of all the grants 
involved in this litigation; it is a long way from proving 
that Hartford lacks a stake altogether. See Warth v. 
Seldin, 422 U.S. 490, 501 (1975) (plaintiff showing- “dis­
tinct and palpable injury to himself” has standing, even 
if large group shares the injury); K. Davis, supra, § 22.02- 
10, at 507 (“The line is not between a substantial injury 
and an insubstantial injury. The line is between injury and 
no injury.”). Appellant’s argument, moreover, does not 
recognize that HUD is unlikely to reallocate funds to lo­
calities that did not apply originally for community devel­
opment funds in 1975; with these localities and the seven 
towns enjoined below eliminated from the reallocation pool, 
only Hartford and two other towns in the SMSA would 
remain eligible.

Appellants further argue that reallocation funds will 
be distributed only to applicants with “urgent needs,” cit­
ing 24 C.F.R. § 570.401(b) (1976) (defining “urgent needs”) 
and id. % 570.409(d), (f) (establishing criteria and priori-

1092



ties for reallocation), and that Hartford has shown no 
such needs. There is no indication, however, that Hartford 
—a city with a high concentration of lower income and un­
employed persons and welfare recipients, see 408 F. Sujjp. 
at 898-94 n.14, and thus likely to have some of the financial 
resources problems to which the “urgent needs” definition 
is addressed, see 24 C.F.R. § 570.401(b) (1976)—will not 
be able to make the requisite showing when it applies to 
HUT) for reallocation funds, as it has indicated its inten­
tion to do, see City of Hartford v. Hills, 408 F. Supp. 879, 
885-86 (I). Conn. 1975) (decision granting preliminary in­
junction). Appellants’ argument essentially would require 
a city to present its reallocation application to the district 
court, rather than to HUD, before the court makes the 
decision that releases funds to be reallocated. Such a re­
quirement would be at least wasteful of resources, since 
the court could decide that HUD had correctly approved 
challenged grants, and in any event would require a city 
to make a far more detailed showing of injury than any 
previous case has required, see Warth v. Seldin, supra, 
422 U.S. at 504 (plaintiffs need only “allege” facts from 
which it can “reasonably . . .  be inferred that . . . there is 
a substantial probability” of injury). The strong likeli­
hood that Hartford will receive reallocated funds, while 
not an absolute certainty, is therefore sufficient to establish 
that Hartford will “benefit in a tangible way from the 
courts’ intervention.” Id. at 508; cf. Evans v. Lynn, supra, 
537 F.2d at 595 (no injury in fact shown when plaintiffs 
“claim[ed] only that, had the grants not been approved, 
the monies could conceivably have gone to some other, as 
yet totally imaginary project . . . which might have” bene­
fited plaintiffs (emphasis in original)).

There is a second, less quantifiable way in Avhich the City 
has been injured by HUD’s approval of the grants. The

1093



district court found that “ [t]he housing situation in Hart­
ford is bleak,” referring especially to the high concentra­
tion of subsidized, low-rent housing in the City relative to 
the greater Hartford region and to the overcrowding caused 
by a housing shortage in the City. 408 F. Supp. at S93-94 
n.14. The elimination or amelioration of precisely these 
sorts of problems is an explicit goal of the Act: 42 U.S.C. 
§ 5301(c) (Supp. V 1975), quoted in full at note 5 su-pra, 
declares that the grants authorized are for the support of 
activities with such objectives as “the elimination of slums 
and blight” and “conditions . . . detrimental to health, 
safety, and public welfare,” and, most importantly for 
present purposes,

the reduction of the isolation of income groups within 
communities and geographical areas and the promotion 
of an increase in the diversity and vitality of neighbor­
hoods through the spatial deconcentration of housing 
opportunities for persons of lower income . . . .

See also id. § 5301(a)(1) (declaration of Congress that 
urban problems arise from, inter alia, “the concentration 
of persons of lower income in central cities”). This spatial 
deconcentration objective, the district court found, cannot 
be met unless an estimate is made of the number of lower 
income persons “expected to reside” in the community. 
408 F. Supp. at 901-02. The Act’s legislative history also 
suggests a close relationship between spatial deconcen­
tration and the “expected to reside” figure. See H.E. Rep. 
No. 93-1114, supra, at 3, 6-7. It follows that, when the Sec­
retary approved applications without these estimates, she 
was substantially lessening the probability that the towns 
would use the funds received to promote spatial deconcen­
tration and related objectives. Since Hartford would have 
been the direct beneficiary of spatial deconcentration ef-

1094



forts by its suburbs-—to take a concrete example, the City’s 
welfare and housing subsidy outlays would be decreased if 
large numbers of lower income persons moved to the sub­
urbs—the City was plainly injured by the Secretary’s ap­
proval of grant applications lacking “expected to reside” 
figures.13

In addition to establishing injury in fact, we take it that 
Hartford must show that the interest it seeks to protect is 
“arguably within the zone of interests to be protected . . . 
by the statute.” Association of Data Processing Service 
Organisations v. Camp, supra, 397 U.S. at 153.14 The stat-

13 The City’s claim of i njury in this respect is quite different from the 
injury allegedly suffered by a city’s taxpayers in Warth v. Seldin, 422 
U.S. 490 (1975). The taxpayers asserted that the exclusionary zoning 
policies of a suburb forced the city to provide more public housing, 
which in turn increased the tax burden on the taxpayer plaintiffs. The 
Warth Court held they lac-bed standing on alternative grounds: first, 
because their injury resulted, not from the challenged zoning policies, 
but from decisions to build public housing on the part of city officials; 
and, second, even assuming injury, because plaintiffs were not asserting 
any personal right to be free of the suburb’s adverse zoning policies, 
but were asserting rights of third parties. 422 U.S. at 508-10.

By contrast, Hartford’s injury here stems from a decision, not by 
its own officials, but by the Secretary of HUD, an injury over which 
Hartford had no control. Cf. The Supreme Court, 1974 Term, supra, 
89 Hare. L. (Rev. at 192 (distinguishing injury in Warth from one re­
sulting from "inexorable economic forces” ). In view of the Act’s spatial 
deconcentration objective, "the line of causation,” 422 U.S. at 509, be­
tween the Secretary’s decision and Hartford’s injury is a direct one. 
Moreover, as discussed in the text infra, Hartford is asserting a right 
of its own, one falling within the zone of interests protected by the 
statute.

14 Professor Davis has cogently argued that the "zone of interests” test 
"is more verbiage than reality.” K. Davis, Administrative Law of the 
Seventies § 22.00, at 486 (1976). He summarizes his reasons for this 
statement as follows:

[T]he test is contrary to the APA, the Supreme Court itself has 
not followed it, the test seems unsatisfactory, only two eases have 
denied standing on the basis of the test to one who is injured in 
fact, and all federal courts have generally found ways to escape 
from applying it.

Id. § 22.02-11, at 515.

1095



ute here, like the one in Data Processing, “do[es] not in 
terms protect a specified group. But [its] general policy 
is apparent . . . . ” Id. at 157. The objectives quoted in 
the preceding paragraph indicate a concern about persons 
of low and moderate income, but. contrary to appellants’ 
suggestion, these individuals as individuals are not the 
only concern of the Act. “The primary objective of [Title 
T] is the development of viable urban communities . . . . ” 
42 U.S.C. § 5301(c) (Supp. V 1975). In the list of the 
purposes for which grants are to be awarded, one finds 
repeated references to this theme, expressed in terms of 
“the welfare of the community,” improvement of . . . com­
munity services,” “sound community development,” and 
“the revitalization of . . . neighborhoods.” Id. § 5301(c)(1), 
(4), (6) ; see note 5 supra. As the legal entity responsible 
for representation of the community as a community, Hart­
ford plainly has an interest that falls within the zone of 
interests protected by the Act. We agree with the district 
court’s conclusion: “ [T]here can be no doubt that the 
statute was intended to ameliorate the problems facing 
the City of Hartford.” 408 F. Supp. at 894. Thus, contrary 
to appellants’ suggestion, Hartford is not suing on behalf 
of its citizens as parens patriae, but is instead seeking to 
vindicate interests of its own, which also happen to be, to 
some extent, congruent with the interests of individual city 
residents. See California v. Automobile Manufacturers As­
sociation (In re Multidistrict Vehicle Air Pollution M.D.L. 
No. 31), 481 F.2d 122, 131 (9th Cir.), cert, denied, 414 U.S. 
1045 (1973).

B. The Low-Income Plaintiffs

Like the City, the individual plaintiffs—low-income Hart­
ford residents living in substandard housing, according to 
affidavits accepted by the district court, 408 F. Supp. at

1096



895 & n.18—must meet both the injury in fact and zone of 
interests tests in order to have standing to sue. The latter 
test is easily met here, since the 1974 Act was intended, 
and the grant funds must be used, to benefit principally 
“persons of low and moderate income,” a phrase repeated 
throughout 42 U.S.G. § 5301(c) (Supp. V 1975), see note 5 
supra. Moreover, the specific statutory requirement at 
issue here, the HAP requirement, involves an assessment 
of, and planning for, “the needs of lower-income persons,” 
both residing in and “expected to reside” in the locality. 
42 U.S.C. § 5304(a) (4) (Supp. V 1975); see note 6 supra. 
See also 42 U.S.C. § 5304(b) (2) (Supp. V 1975) (grant 
applicant must certify that its program will “give maxi­
mum feasible priority to activities which will benefit low- 
or moderate-income families”). It seems clear that Title I ’s 
“zone of interests” encompasses the interests of low-income 
residents of a central city.

The more difficult issue is whether the individual plain­
tiffs have been injured in fact by the Secretary’s approval 
of appellants’ grant applications. The absence of such in­
jury led to findings that low-income plaintiffs lacked stand­
ing in Warth v. Selclin, supra, and Evans v. Lynn, supra. 
Because the facts of both cases were quite different from 
the facts of the instant case, however, neither is controlling 
here. In Warth the low-income plaintiffs alleged that they 
had been excluded from a town’s housing market by virtue 
of the town’s “exclusionary” zoning ordinance, which they 
claimed was constitutionally defective. The Supreme Court 
ruled that the plaintiffs had failed to show that they “per­
sonally would benefit in a tangible way from the courts’ 
intervention,” 422 U.S. at 508, in large part because “their 
inability to reside in [the town] is the consequence of the 
economics of the area housing market, rather than of re­
spondents’ assertedly illegal acts,” id. at 506. Plaintiffs

1097



here are asserting a specific violation of a statute, not a 
generalized claim that a law is unconstitutional, a factor 
of substantial importance in view of the Warth Court’s 
recognition that “ [t]he actual or threatened injury required 
by Art. I l l  may exist solely by virtue of “statutes creating 
legal rights, the invasion of which creates standing 
Id. at 500, quoting Linda R. 8. v. Richard D., 410 U.S. 614, 
617 n.3 (1973). As discussed above, the statute at issue 
here was designed to protect persons in the plaintiffs’ situa­
tion, and the approval of applications lacking legitimate 
“expected to reside” figures in the HAPs appears to have 
directly injured the plaintiffs, since the HAPs were in­
tended to lead to greater low-income housing opportunities 
on a deconcentrated, regional basis, see Hills v. Gautreaux, 
44 U.S.L.W. 4480, 4486-87 n.21 (U.S. Apr. 20, 1976). The 
district court’s intervention, moreover, should be of tan­
gible benefit to the plaintiffs, because it is likely to lead to 
a reallocation of funds to Hartford, see supra, which will 
be required to use the funds for the benefit of persons of 
low and moderate income, in accordance with the purposes 
of the Act.

Evans v. Lynn is also distinguishable. Although the case 
has some superficial similarity to the instant case, in that 
it was an attempt to enjoin HUD’s award of federal grant 
funds on statutory grounds, the en banc majority held that 
the plaintiffs there failed to demonstrate that they had 
been injured by the grant awards or that court intervention 
would be of benefit to them. See 537 F.2d at 595. Beyond 
that, as Judge Mansfield pointed out in his concurring 
opinion, if the awards to the New York town in Evans had 
been enjoined, “HUD would presumably [have been] free 
to use the money to aid construction of sewers and parks 
in San Francisco.” Id. at 598. HUD does not have any 
such freedom in the instant case; the statute gives reallo-

1098



cation priority to “metropolitan area[s] in the same state,” 
42 U.S.C. § 5306(e) (Supp. V 1975), and HUD’s own reg­
ulations give priority “to the same metropolitan area,” 24
C.F.R. § 570.409(f) (1) (i) (1976). While “ [t]he most” the 
Evans plaintiffs could expect was “the satisfaction that 
federal funds will not be misused,” 537 F.2d at 598 (Mans­
field, J., concurring), plaintiffs here can expect concrete 
benefits resulting from both reallocation of community 
development funds and increased attention to the low-in­
come housing improvement and spatial deconcentration 
objectives of the Act.15 16

I II . T h e  A l l e g e d  V io l a t io n s  o f  t h e  A ct

In considering the substance of plaintiffs’ allegations 
that the Housing and Community Development Act was 
violated by HUD’s approval of the challenged grants, we 
will examine the claim as to East Hartford separately from 
that as to West Hartford and Glastonbury, because, as indi­
cated supra, the latter two towns submitted “expected to

15 The dissent, relying on Linda R. S. v. Richard E., 410 U.S. 614 (1973), 
downplays the congressional emphasis on the "expected to reside” por­
tion of the statute, note 6 supra, which is a prerequisite to approval 
by HUD of a grant application. See note 5 of dissenting opinion. But 
Linda R. S. v. Richard V. arose "in the unique context of a challenge 
to a criminal statute,” 410 U.S. at 617, and has no relevance to the 
bearing of "legislative expectations” on standing determinations. The 
Linda R. S. Court expressly distinguished the case before it from a case 
like the instant one, in which standing derives from the invasion of a 
statutorily-protected interest, Td. at 617 & n,3.

The dissent also refers to Simon v. Eastern Kentucky Welfare Rights 
Organization, 44 TJ.S.L.W. 4724 (U.S. June 1, 1976), using it for the 
proposition that Hartford bears the burden of proof on the issue of 
standing. We think that burden met. Simon is further cited for the 
propositions that the injury must be traceable to the challenged ac­
tions of the defendants and that the court’s remedy must serve to pre­
vent the alleged harm. These accepted propositions can he applied, 
however, only in the context of the Aet of Congress with which this 
case is concerned; in that context, as our opinion seeks to demonstrate, 
both requirements have been more than satisfied.

1099



reside” figures of zero on tlicir HAPs, whereas East Hart­
ford submitted an actual number (131).

A. IFcsf Hartford and Glastonbury
In submitting grant applications with zero “expected to 

reside” figures, the two towns were following the option 
given to them by HUD in the May, 1975, memorandum. 
The district court held that this option constituted an 
invalid waiver of a crucial portion of the 1974 Act, so that 
the appellants in selecting the option, and HUD in approv­
ing the grants, all acted contrary to the Act. 408 I 1. Supp. 
at 902. HUD now appears to concur in this holding; its 
amicus brief explicitly declines even partially to contest the 
district court’s conclusion in this regard and assures us 
that HUD has modified its regulations to bar zero figures 
submitted because of an alleged unavailability of data. 
Brief for Secretary of Housing and Urban Development as 
Amicus Curiae at 16-18.

We agree with the district court and with the HUD 
amicus brief. The Act itself could not be more clear: no 
grant may be made unless the applicant submits an appli­
cation with six elements, one of which is the housing as­
sistance plan, 42 U.S.C. § 5304(a) (Supp. V 1975); the plan 
must “accurately” assess the housing needs of low-income 
persons, “residing in or expected to reside in the com­
munity,” id. § 5304(a) (4) (A). See note 6 supra. Were 
this the only statutory statement relating to the grant 
application, it would probably enable us to find that HUD’s 
memorandum improperly authorized a waiver, for the 
simple reason that, absent some overriding exigency, an 
administrative agency may not waive an express statutory 
requirement. Cf. Morton v. Ruiz, 415 U.S. 199, 232 (1974) 
(agency’s decisions must be consistent with governing leg­
islation) ; American Ship Building Co. v. NLRB, 380 U.S. 
300, 318 (1965) (courts must prevent “the unauthorized

1100



assumption by an agency of major policy decisions properly 
made by Congress”); Marsano v. Laird, 412 F.2d 65, 69 
(2d Cir. 1969) (“an express statutory right cannot be 
impaired by administrative action”).

The Act does give further guidance, however. In the 
subsection following the application requirements, it allows 
the Secretary, in certain circumstances, to waive, or accept 
the applicant’s certification as to, five of the six require­
ments. 42 U.S.C. § 5304(b) (3), (4) (Supp. V 1975). The 
only requirement not listed is that for the HAP. The con­
clusion is virtually inescapable that the Secretary lacked 
discretion to waive the HAP requirement. See 408 P. Supp. 
at 901; text at and notes 7-10 supra.

It is true that, as appellants argue, waiver of submission 
of the “expected to reside” figure is not waiver of the en­
tire HAP requirement, A reading of the whole statute, 
luuvever, makes it evident that the HA P’s value is sub­
stantially undermined by omission of this figure. If an 
applicant makes no effort to predict the number of lower 
income persons it expects to reside within its boundaries 
in the near future, it is difficult to see how the applicant 
can “specif [y] a realistic annual goal” for assisted housing 
or indicate with any reliability where the proposed housing 
will be located, both of which it must do in order to com­
plete the HAP. 42 U.S.C. § 5304(a)(4)(B), (C) (Supp. V 
1975) ; see note 6 supra. In the legislative history of the 
Act, Congress “emphasizeI'd]” the importance of commu­
nities, “in assessing their housing needs, looking] beyond 
the needs of their residents to those who can be expected 
to reside in the community as well.” H.E. Rep. No. 93-1114, 
supra, at 7. See also 408 F. Supp. at 901 (“the ‘expected 
to reside’ figure is the keystone to the spatial deconcentra­
tion objective of the 1974 Act” (emphasis in original)). 
Because of the central role of the “expected to reside”

1101



estimate, we think eminently sound Judge Blumenfeld’s 
conclusion that a waiver of this requirement is in effect a 
waiver of the entire HAP. See id. at 901-02.

Appellants argue in the alternative that the zero figures 
can be considered legitimate, because the data necessary 
to make accurate “expected to reside” estimates was not 
available. The Secretary was thus forced by practical 
exigencies, they contend, to “defer” this requirement. We 
believe this argument entirely misunderstands the mean­
ing of a statutory directive. When Congress directs that 
something be done, it should be done, even if the data base 
is far from perfect. Of. Adams v. Richardson, 480 F.2d 
1159, 1164 (D.C. Cir. 1973) (en banc) (per curiam) (lack 
of agency experience in area does not “justiffy] a failure 
to comply with a Congressional mandate”) ; Environmental 
Defense Fund, Inc. v. Ruclcelshaus, 439 F.2d 584, 592-95 
(D.C. Cir. 1971) (agency must take action even if not con­
vinced “beyond a doubt” as to proper course) ; L. Tribe, 
Channeling Technology Through Law 33 (1973) (technol­
ogy assessment frequently amounts to nothing more than 
“reconciling highly imprecise professional hunches”). Con­
gress was presumably aware of the data collection prob­
lems localities might face, see H.R. Rep. No. 93-1114, supra, 
at 7, but it apparently preferred an administrative deci­
sion based on incomplete data to no decision at all. It is 
clear that a substantial amount of data was available to 
the towns; the very HUD memorandum that gave them 
the zero figure option also listed a variety of data sources 
from which a reasonable figure could be calculated. Edu­
cated guesses by the towns as to how many low-income 
persons might be expected to reside therein would surely 
have been better than the sham zero figures in promoting 
the rational community planning with which Congress was 
concerned.

1102



B. East Hartford

The Town of East Hartford did submit an “expected to 
reside” figure, but the district court concluded that HUD’s 
review of this figure’s validity was so seriously inadequate 
as to constitute an abuse of discretion. The figure sub­
mitted was based upon a projection of the waiting list of 
the East Hartford Housing Authority, and HUD failed to 
verify in any way whether this figure was a valid one. 
While HUD sought to justify this failure by asserting an 
absence of data, HUD’s own regulations, application in­
structions, and memoranda suggested sources of data that 
were “generally available,” 42 U.S.C. § 5304(c)(1) (Supp. 
Y 1975), and that should have been used by HUD to verify 
the accuracy of East Hartford’s figure. Thus, the district 
court concluded, “HUD was doubly at fault—it did not 
obtain the generally available information required for a 
proper review, and it acted upon the basis of inadequate 
information.” 408 F. Supp. at 903.

As the district court recognized, id. at 903 & n.57, the 
general proposition that review of agency discretion is 
narrowly circumscribed, see Citizens to Preserve Overton 
Park v. Volpe, 401 U.S. 402, 416 (1971), is particularly com­
pelling in the case of review of approval of community 
development grants, since the statute’s application and 
approval procedures, as discussed supra, establish a “pre­
sumption of approval.” See also Ulster County Community 
Action Committee, Inc. v. Koenig, 402 F. Supp. 986, 990 
(S.D.N.Y. 1975); Fishman, supra, 7 Urban Law. at 211. 
As the Supreme Court stated in Overton Park, however, 
such a presumption does not “shield [the Secretary’s] 
action from a thorough, probing, in-depth review.” 401 
U.S. at 415; see Schicke v. Romney, 474 F.2d 309, 315 (2d 
Cir. 1973). This court has plainly held, moreover, that “it 
is ‘arbitrary or capricious’ for an agency not to take into

1103



account all relevant factors in making its determination.” 
TIanly v. Mitchell, 460 F.2d 640, 648 (2d Cir.), cert, denied, 
409 U.S. 990 (1972). At the very least, ‘Ascertainable stan­
dards” are required. Holmes v. Nav York City Housing 
Authority, 398 F.2d 262, 265 (2d Cir. 196S).

East Hartford argues on appeal that its “expected to 
reside” figure of 131 was not proven wrong by the district 
court. This argument misunderstands the role of the 
courts in reviewing agency action. The district court did 
not have an obligation, and perhaps lacked the authority, 
to assess the correctness of East Hartford’s figure. Its 
role was both more limited and more vital to the proper 
functioning of the administrative process: to determine 
“whether the decision was based on a consideration of the 
relevant factors and whether there has been a clear error 
of judgment.” Citizens to Preserve Overton Park v. Volpe, 
supra, 401 U.S. at 416.

It seems clear that HUD made a major “error of judg­
ment” in not independently investigating East Hartford’s 
figure. A suburban town’s attempt to ascertain the hous­
ing needs of future residents from a waiting list for a 
limited supply of public housing units is certainly suffi­
ciently questionable to require some further verification. 
The court below found that data was “generally available” 
from which such a verification could have been made. Es­
sentially for the reasons stated by the district court, 408 
F. Supp. at 902-07, we conclude that the Secretary acted 
arbitrarily and capriciously in approving East Hartford’s 
grant application.16

36 We recognize and appreciate Professor Davis’s concern that review 
on the basis of "whether there has been a clear error of judgment " 
Citizens to Preserve Overton Parle v. Volpe, 401 U.S. 402, 416 (1971), 
comes too close to judicial substitution of judgment. K. Davis, supra 
note 14, §§ 29.00, 29.01-5. I t is equivalent, Professor Davis urges, to 
the clearly erroneous test, which in turn involves broader review 
than even the "substantial evidence” test, id. § 29.01-5, at, 666, which

1104



IV. T h e  R e m e d y

The injunction issued by the district court is challenged 
on the ground that it was directed against appellant towns, 
rather than against HDD. In view of the fact that 1IUD 
had sent letters of credit to the towns by the time the 
preliminary injunction was issued, so that they were free 
to obtain grant funds from the Treasury, see City of Hart­
ford v. Hills, supra-, 408 F. Supp. at 882 (opinion on motion 
for preliminary injunction), the court’s order restraining 
the towns (who were defendants) from drawing out or 
spending these funds appears to be the most direct means 
of preventing expenditure of unlawfully authorized monies. 
The injunction provided, moreover, that it could “be lifted 
upon the filing with the court of . . .  a new approval [of 
the towns’ grant applications].” 408 F. Supp. at 907. Such 
an injunction, combining a practical means to a desired 
end with a mechanism to take account of future develop­
ments, is consistent with the broad, flexible nature of the 
federal courts’ equitable powers. See Hills v. Gautreaux, 
supra, 44 U.S.L.W. at 4484, and authorities cited therein.

The suggestion is made that the case may be moot as to 
West Hartford and Glastonbury because they have filed 
new applications, the 75-day period has run, and they are 
entitled to funds under the new applications. See 42 U.S.C. 
§ 5304(f) (Supp. V 1975). But the injunction relates only 
to funds granted prior to the time of its entry and is

similarly affords "a considerably more generous judicial review than 
the 'arbitrary and capricious’ test available in the traditional injunc­
tive suit,” Abbott Laboratories v. Gardner, 387 U.S. 136, 143 (1967). 
But it is no substitution of judgment to say that approval of a block 
grant under the Act must depend upon agency consideration of all 
the data that the agency itself thinks relevant to the statutory require­
ment of an "expected to reside” estimate. See K. Davis, supra $ 29.01-5, 
at 666 (approving Overton Parle’s "consideration of relevant factors” 
te st).

1105



not mooted by any later grants pursuant to later submis­
sions. The injunction may be lifted by filing with the dis­
trict court new HUD approvals of applications with ade­
quate “expected to reside” figures.

Judgment affirmed.

M e s k il l , Circuit Judge (dissenting):
I respectfully dissent, for I cannot agree that the plain­

tiffs have standing to maintain this action. However, before 
turning to the issue of standing, I should like to comment 
upon the unusual procedural jmsture in which East Hart­
ford, West Hartford and Glastonbury (“appellants”) now 
find themselves. The plaintiffs’ complaint originally named 
HUD, its Secretary, its Regional Administrator and its 
District Director as the only defendants (the “federal de­
fendants”). The local defendants (Farmington, Windsor 
Locks, Vernon, Enfield and the appellants) were joined as 
parties by the federal defendants. At the district court 
level, the defense of this action was dominated by the fed­
eral defendants, upon whom the local defendants relied to 
carry the burden of this litigation. This approach was 
encouraged by the district judge, who, in order to simplify 
the proceedings, asked the local defendants to “tag along 
and support the federal defendant [sic] and take the same 
position.” On January 28, 1976, the district court issued 
its decision enjoining the local defendants from spending 
the funds granted under the Block Grant Program. The 
federal defendants decided not to appeal from that decision 
because (1) HUD finds the result to be consistent with its 
present practices, (2) the district court’s opinion can be 
read in a manner consistent with HUD’s interpretation of 
its duties under the Act, and (3) the injunction only applies 
to the seven local defendants. Brief For The Secretary of

1106



Housing and Urban Development Amicus Curiae at 3. 
With a few minor exceptions, the brief filed by HUD is in 
general agreement with the decision of the district court 
and the position taken by the plaintiffs. The issue of stand­
ing is not discussed, for it is outside the scope of the brief. 
Id. at 4.

Of the seven local defendants thus left holding the bag, 
three have appealed. All have now learned the hard way 
that it is not always a good idea to “tag along” with and 
“take the same position” as a co-defendant. The three 
appellants are now represented by counsel who did not 
participate in any of the proceedings below.

It is relatively easy to see why all of this occurred. HUD, 
of course has a substantial interest in the manner in which 
the courts construe the 1974 Act, and so it would naturally 
want to play a dominant role in any proceeding concerning 
that Act. The local defendants who were joined as such by 
HUD would naturally want to rely heavily upon the latter’s 
expertise. This is particularly true where, as here, the 
district court asks them to do so in order to simplify the 
proceedings. As a result of what has occurred, however, 
much has been lost in terms of the sharpening of the 
presentation of issues upon which the courts rely so heavily. 
It is not my intention to disparage counsel’s presentation, 
for counsel have, in my judgment, done a fine job in that 
regard. I wish only to point out that it could have been 
improved if greater foresight had been shown at the dis­
trict court level. District courts and private counsel can, 
and should, be alert to the potentially conflicting interests 
of private litigants and governmental agencies, but govern­
mental agencies bear a special responsibility in this respect. 
Because of their expertise in their respective fields, and 
because of the frequency with which they are likely to en­
counter problems such as that which has arisen here, gov­
ernmental agencies are in a superior position to foresee

1107



and avert those problems. It is to be hoped that in the 
future agencies such as HUD will make some effort to 
assure that their co-defendants are made aware of possible 
conflicts of interest so that other litigants will not find 
themselves in appellants’ position.

Turning now to the standing issues presented, I believe 
a brief restatement of the facts is in order. On April 15, 
1976, the Hartford Area Office of the Department of Hous­
ing and Urban Development received an application for 
Community Development Block Grant Assistance filed by 
the City of Hartford pursuant to the Housing and Com­
munity Development Act of 1974. By letter dated June 24, 
1975, HUD approved a grant to Hartford in the amount 
of $10,025,000. Hartford executed a Grant Agreement on 
July 30, 1975.

The towns of East Hartford, West Hartford and Glas­
tonbury followed much the same procedure in applying for 
Block Grant Assistance, and they were granted $440,000, 
$999,000 and $910,000, respectively. Hartford and two of 
its low-income residents now challenge those grants on 
the ground that the applications submitted by the towns 
fail to satisfy one of the requirements of the Act.1 The 
majority holds that the plaintiffs have standing to make 
such a challenge. I cannot agree.

The majority holds that Hartford has satisfied the “in­
jury in fact” test established in Association of Data Pro­
cessing Service Organizations, Inc. v. Camp, 397 U.S. 150, 
152 (1970), because (1) if the grants to the towns are dis­
approved, there is a “strong likelihood,” ante, a t ----- , that

1 Of the eight municipal governments, including the City of Hartford, 
who were parties to this action, only one, East Hartford, made any 
attempt to satisfy the requirement of 42 U.8.C. $ 5304(a) (4) (A ) 
(Supp. V 3975). Thus, Hartford and six of the defendant towns an 
tered rero as the number of low-income persons "expected to reside” 
within their borders. East Hartford entered 335. HUD subsequently 
reduced this figures to 131.

1108



Hartford will receive reallocated funds under 42 IJ.S.C. 
§ 5306(e) (Supp. V 1975),2 3 and (2) HIID’s approval of 
applications that failed to comply with the statutory re­
quirements “substantially lessen [ed] the probability,” ante,
a t ----- that Hartford would benefit from the “spatial de-
concentration” objective of the Act.

Assuming, arguendo, that a potential claim to a fund 
that will not even exist unless plaintiff is successful on the 
merits can ever satisfy the injury-in-fact test—which ap­
pears to require a present injury in addition to a prospec­
tive benefit—it is clear that in this case there is not the 
slightest chance that Hartford will ever receive reallocated 
funds as a result of this lawsuit. While it may be true that 
Hartford would have a priority position in applying for 
reallocated funds, that priority will mean little if there are 
no funds to reallocate. Despite the indications to the con­
trary in the majority opinion, Hartford, as the party who 
asks the Court to assume jurisdiction, bears the burden of 
proof on the issue of standing, Simon v. Eastern Kentucky 
Welfare Tt>yhts Organization, 44 U.S.L.W. 4724, 4730 (U.S. 
June 1, 1976), and although Hartford may have proved 
that it would have a priority position in applying for 
reallocated funds, it has failed to prove that the interven­
tion of the federal courts will result in the availability of 
funds for reallocation. The wrong of which Hartford

2 The complaint does not mention the possibility of obtaining reallocated 
funds as a prospective benefit of this lawsuit. To find that the plain­
tiffs have alleged a stake in the outcome sufficient to confer standing 
on the basis of a prospective benefit that is not even mentioned in the 
complaint is to grant far greater pleading latitude than prior cases 
indicate is appropriate. See Simon, v. Eastern Kentucky Welfare Right.. 
Organisation, 44' U.S.L.W. 4724, 4728-30 (U.S. June 1, 1976); Worth 
v. Seldin, 422 U.S. 490, 501-02 (1975); United States v. SCRAP, 412 
U.S. 669, 688-89 (1973); Sierra Club v. Morton, 405 U.S. 727, 734-36 
(1972); ’Evans v. Lynn, 537 F.2d 571, 592 (2d Cir. 1976) (cn bane). 
See also 13 C. Wright. A. Miller & E. Cooper, Federal Practice and 
Procedure: Jurisdiction § 3531, at 17-18 (Supp. 1976).

1109



complains is HUD’s approval of the defendant towns’ 
allegedly defective applications. If Hartford is correct 
that the applications were defective, and that HUD abused 
its discretion in approving them, Hartford would not be 
entitled to relief preventing the defendant towns from 
ever receiving their grants. Hartford would be entitled 
only to an injunction pending the submission of acceptable 
applications—precisely what it sought, and precisely what 
the district court granted. Such an injunction would result 
in the availability of funds for reallocation only if the 
towns forfeited their grants by failing to submit acceptable 
applications. West Hartford and Glastonbury have al­
ready submitted new applications, thereby negating any 
possible inference that they intend to forfeit their grants 
■—in addition to creating a substantial mootness problem— 
and there is not the slightest indication that East Hart­
ford has any intention of forfeiting its $440,000 grant by 
failing to do likewise. It is sheer fantasy to suppose that 
Hartford will ever receive reallocated funds as a result of 
the intervention of the federal courts. In my view, Hart­
ford’s asserted interest in reallocated funds is even more 
speculative than the interest found to be not judicially 
cognizable in Linda R.S. v. Richard D., 410 U.S. 614 (1973), 
and, accordingly, I would hold that it is insufficient to 
confer standing upon Hartford.3

The majority also finds standing on the basis of “a 
second, less quantifiable,” injury suffered by Hartford, 
ante, at ----- . That injury is the “bleak” housing situa­
tion that exists in Hartford. That situation will be im­
proved, we are told, if the suburbs are required to include 
accurate “expected to reside” figures in their applications 
for Block Grants. This injury is insufficient to confer

3 To the extent that the low-income plaintiffs’ claim of standing rests 
upon their assertion of an interest in reallocated funds, see ante, at 
——, it too must fail.

1110



standing for three reasons. First, it cannot fairly be said 
that the housing situation in Hartford is a result of, or can 
be traced to, the challenged action of the defendants. 
Simon v. Eastern Kentucky Welfare Rights Organisation, 
supra, 44 U.S.L.W. at 4729. Second, the possibility that 
the inclusion of accurate “expected to reside” figures will 
result in the betterment of the housing condition in Hart­
ford is at least as remote and speculative as the possibility 
in Linda R.S. v. Richard D., supra, that the prosecution of 
an unwed father for failing to support his child will result 
in the payment of support. Third, and more important, 
Hartford may not properly assert an interest in improving 
its bleak housing situation in an action against the federal 
government. The doctrine of Massachusetts v. Mellon, 262 
U.S. 447 (1923), places strict limits on the power of states 
to represent their citizens in actions against the federal 
government. See, e.g., Com. of Pa., by Shapp v. Kleppe, 
533 F.2d 668 (D.C. Cur.), cert, denied, 45 U.S.L.W. 3396 
(U.S. Nov. 30, 1976). The power of a political subdivision 
of a state is even more rigidly circumscribed. As the
majority recognizes, ante, at ----- •, a city cannot sue as
parens patriae, but is limited to the vindication of such 
of its own proprietary rights as might be congruent with 
the interests of its residents. California v. Auto. Mfrs. 
Ass’n, Inc. (In Re MuUidistrict Vehicle Air Pollution 
M.D.L. No. 31), 481 F.2d 122, 131 (9th Cir.), cert, denied, 
414 U.S. 1045 (1973). Hartford’s assertion of an interest 
in improving its bleak housing situation is nothing more 
than an attempt to vindicate a general interest in the social 
and economic well-being of the citizenry. Even a state 
would encounter serious difficulties in asserting such an 
interest against the federal government, and it can hardly 
be said that this is the sort of proprietary interest which 
Hartford may assert.

1111



Merely because Hartford may not assert the rights of 
its citizenry in a representative capacity does not mean 
that individual citizens may not assert their own rights. 
Accordingly, I next turn to the claims of the low-income 
plaintiffs to determine whether they have alleged a stake 
in the outcome sufficient to confer standing.

The individual plaintiffs in this case are low-income 
residents of Hartford who live in substandard housing and 
who have sought, unsuccessfully, to secure affordable hous­
ing in the suburbs. There is, of course, no question that 
an individual who is, effectively, trapped in a slum suffers 
a serious, present and continuing injury. Abstract injury 
alone, however, is insufficient to confer standing. Linda 
II.S. v. Richard 71., supra, 410 TT.S. at 618. The injury al­
leged must fairly be traceable to the challenged action of 
the defendant, and the desired exercise of the Court’s re­
mediable powers must in some perceptible way serve to 
remove the harm. Simon v. Eastern Kentucky Welfare 
Rights Organization, supra, 44 U.S.L.W. at 4729-30. The 
majority is correct in holding that the facts of this case 
are distinguishable from those of Worth and Evans} How­
ever, the distinctions are not great enough, in my judg­
ment, to justify the conclusion reached by the majority.

To begin with, the bleak housing situation in Hartford 
is not the product of TIUD’s failure to require the defen­
dant towns to include “expected to reside” figures in their 
applications for Block Grants under the 1974 Act. The 
housing situation in Hartford was bleak long before 1974. 
Nor are the specific conditions of which the plaintiffs com­
plain a product of HTTD’s alleged abuse of discretion. 
Plaintiff Jordan had been living at her present address 
for two years as of June 30, 1975, and therefore her plight 
antedates the Act by roughly one year. Plaintiff Mauldin’s

4 Warth v. Seldin, 422 U.S. 490 (1975); Evans v. Lynn 537 p  2d 571 
(2d Cir. 1976) (en banc).

1112



position is no stronger. She moved to Hartford approxi­
mately one month before David Meeker wrote his memo­
randum “waiving” the requirement of 42 U.S.C. § 5304(a) 
(4) (A) (Supp. V 1975). Of course, Mrs. Mauldin’s plight 
has nothing to do with acts of Congress or HUD or David 
Meeker’s memorandum. Tier plight is the direct result of 
the fact that her husband became incapacitated. That in­
capacitation led to his unemployment, which, in turn, led 
to the loss, through foreclosure, of the family home in the 
suburban town of Bloomfield.

As indicated above, the injury suffered by the individual 
plaintiffs is a continuing one. However, because the basic 
injury of which the plaintiffs complain antedated the ac­
tion they challenge, they would have standing only if they 
can allege that their injury has been, or will in fact be, 
perceptibly aggravated by the challenged action. The plain­
tiffs have not made, and, indeed, could not make, such an 
allegation. HUD’s failure to require the defendant towns 
to include “expected to reside” figures in their applications 
for Block Grants did not make the plaintiffs’ situation 
worse, but merely left it the same. The “waiver” of the 
requirement by HUD did not have a negative effect. It 
merely failed to produce the hoped-for positive effect. 
Thus, the low-income plaintiffs’ claim of standing, like 
that of the City of Hartford, depends not upon a present 
injury that has been caused by IIUD’s allegedly unlawful 
action, but upon a prospective benefit that they hope will 
accrue if the federal courts intervene and require the in­
clusion of accurate “expected to reside” figures. The stand­
ing vel non of plaintiffs with such claims depends upon 
whether there is a direct nexus between the vindication of 
their interests and the relief they seek, or whether the 
prospect that their lot will be improved by the desired 
exercise of the Court’s remedial powers is merely specu­
lative. See Linda R.S. v. Richard I)., supra, 410 U.S. at

1113



618-19. The most recent applications of these standards 
by the Supreme Court place formidable barriers in the 
way of actions such as the one now before this Court. See, 
e.g., Simon v. Eastern Kentucky Welfare Eights Organiza­
tion, supra. The plaintiffs have not. in my view, success­
fully cleared those barriers. It is naive to imagine that 
plaintiffs’ lot will be perceptibly improved merely by co­
ercing the defendant towns into including accurate “ex­
pected to reside” figures in their Block Grant applications. 
The “expected to reside” figure lacks the magical power 
that would be required to produce such a result. The 
causes of the housing problems that plague the cities of 
this Nation are legion. Suggested cures for those problems 
are complex and equally numerous. The “expected to re­
side” figure is a new and relatively small part of the 
federal government’s attack on urban housing problems. 
Its impact on those problems is unknown and unmeasur­
able. The prospect that it will have the desired impact or 
that its impact will be perceptible is gossamery.5 Thus, 
the complaint does not demonstrate, and the plaintiffs 
could not possibly show, a substantial likelihood that vic­
tory in this suit would result in their securing the adequate, 
low-cost housing that they desire. See, Simon v. Eastern 
Kentucky Welfare Rights Organization, supra, 44 U.S.L.W. 
at 4730. Accordingly, I would hold that the low-income 
plaintiffs, like the City of Hartford, lack standing to main­
tain this action.

The judgment of the district court should be vacated and 
the cause remanded with instructions to dismiss the com­
plaint.

I t  is true, of course, that Congress expects, or at least hopes, that 
the "expected to reside” figure will have some impact. However, legisla­
tive expectations are not necessarily dispositive in determining whether 
those expectations are speculative. See Linda B.S. v. Richard I)., supra.

1114