Warth v. Selden Reply Brief of Respondents

    In The

$apretne (Emtrt of tlje United States

OCTOBER TERM , 1974

No. 73-2024

RO BERT W A R TH ,e ta l ,
Petitioners,

vs.

IR A  SELDIN, ef al.,
Respondents.

ON W R IT  OF C E R T IO R A R I TO  THE 
UNITED STATES COURT OF APPEALS 

FO R TH E SECOND CIRCUIT

B R IE F OF RESPONDENTS

James M . Hartman 
Douglas S. Gates 
J. William Ernstrom 
Luther C. Nadler

Harris, Beach and Wilcox 
Two State Street 
Rochester, New York 14614 
Telephone: 716-232-4440

Attorneys for Respondents

Daily Record Corporation 
Rochester, New York

(831)



TABLE OF CONTENTS

Page

Question Presented.................................................................. 1

Statement of the C a s e .............................................................  1

Summary of Argum ent...........................................................  4

Argument: Each of the various individual and corporate 
petitioners lacks standing to challenge, on various 
constitutional and statutory theories, the zoning or­
dinance of the Town of Penfield, New York, and 
fifteen years’ administration of that ordinance...............  7

A. Low-Income Minority Individuals .............................. 8

B. Taxpayers..........................................................................  26

C. Organizational Petitioners............................................  33

1. M etro-A ct......................................................................  35

2. Housing Council .........................................................  39

3. Home Builders........................................  42

Conclusion ................................................................................. 45



11

Table o f  Citations

Page

Cases:

Association o f Data Processing Service Organizations,
Inc. v. Camp, 397 U.S. 150 (1970) 4, 5, 7, 13, 25, 32, 33, 41

Baker v. Carr, 369 U.S. 186 (1962) ....................................
...................................................  4 ,5 ,8 ,9 ,1 5 ,2 5 ,3 9 ,4 0 ,4 4 ,4 6

Banks v. Perk, 341 F. Supp. 1175 (N.D. Ohio 1972), 
a ff’d in part & rev ’d in part, 473 F.2d 910 (6th Cir.
1 9 7 3 ) .....................................................................................23, 24

Barlow v. Collins, 397 U.S. 159 (1 9 7 0 )....................... 32 ,33 , 41

Barrows v. Jackson, 346 U.S. 249, rehearing denied, 346 
U .S.841 (1953) .................................................................. 19

Bates v. City o f Little Rock, 361 U.S. 516 (1 9 6 0 )............. 34

Blackshear Residents Org. v. Housing Auth., 347 F.
Supp. 1138 (W .D. Tex. 1972) ................................  24

Buchanan v. Warley, 245 U.S. 60 (1917) .........................  18

Carter v. Stanton, 405 U.S. 669 (1 9 7 2 ) .............................. 14

Colev. Housing Auth., 435 F.2d 807 (1st Cir. 1970) . . . .  24

Crampton v. Zabriskie, 101 U.S. 601 (1879) ...................  28

Crowv. Brown, 457 F.2d 788 (5th Cir. 1972), aff g. 332 
F. Supp. 382 (N .D. Ga. 1971) .........................................21, 41

Cuyahoga Metropolitan Housing Auth. v. City o f Cleve­
land, 342 F. Supp. 250 (N.D. Ohio 1972), a ff’d sub 
nom. Cuyahoga Metropolitan Housing Auth. v. 
Harrnody, 474 F .2d 1102 (6th Cir. 1 9 7 3 ).....................  24

Dailey v. City o f Laivton, 425 F.2d 1037 (10th Cir.
1970), a ff’g. 296 F. Supp. 266 (W .D. Okl. 1 9 6 9 )........ 22, 41



Dandridgev. Williams, 397 U.S. 471 (1970) ...................  45

Doremus v. Board o f Educ., 342 U.S. 429 (1 9 5 2 ) .............
......................................................... 5 ,2 6 ,2 7 ,2 8 ,2 9 ,3 0 ,3 1 ,3 2 ,3 3
Engel v. Vitale, 370 U.S. 421 (1962) .................................. 31

Everson v. Board o f Educ., 330 U.S. 1, rehearing denied,
330 U.S. 855 (1947) .........................................................  27

Ex parte Levitt, 302 U.S. 633 (1 9 3 7 ) ..................................  9

Fairchild v. Hughes, 258 U.S. 126 (1922) .......................  9

Blast v. Cohen, 392 U.S. 83 (1 9 6 8 ) ......................................

I l l
Page

..........................................  5, 7, 8 ,1 3 ,1 7 , 25, 26, 29, 30, 31, 32

Garrett v. City o f Hamtramck, 335 F. Supp. 16(E.D .
Mich. 1971), supplemental order, 357 F. Supp. 925 
(1973) ................................................................................... 25

Gautreaux v. Chicago Housing Auth., 265 F. Supp. 582 
(N.D. 111. 1967) .................................................................. 24

Giles v. Harris, 189 U.S. 475 (1 9 0 3 ) ...................... 3 9 ,4 0 ,4 3 ,4 4

Jenkins v. McKeithen, 395 U.S. 411, rehearing denied,
396 U.S. 869 (1 9 6 9 )...........................................................  14

Kennedy Park Homes Assn., Inc. v. City of 
Lackawanna, 436 F.2d 108 (2d Cir. 1970), cert, 
denied, 401 U.S. 1010 (1 9 7 1 ).................................... 21, 22, 41

King v. New Rochelle Municipal Housing Auth., 442 
F.2d 646 (2d Cir.), cert, denied, 404 U.S. 863 (1971) . 24

Linda R.S. v. Richard D., 410 U.S. 614 (1973) . . .5, 13, 17, 18

Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293 
(1961) ................................................................................... 34

Massachusetts v. Mellon, 262 U.S. 447 (1 9 2 3 ) .................
...................................................................... 4 ,5 ,9 ,1 3 ,2 6 ,2 8 , 29



Page

Metropolis Theatre Co. v. City o f Chicago, 228 U.S. 61 
(1913) ................................................................................... 45

Morales v. Haines, 486 F.2d 880 (7th Cir. 1 9 7 3 ) .............24, 41

N AAC P v. Alabama ex rel. Patterson, 357 U.S. 449 
(1958) ..........................................   6 ,3 4

N A A C P v. Button, 371 U.S. 415 (1 9 6 3 ) ............................ 6 ,3 4

National M otor Freight Traffic A ss ’n., Inc. v. United 
States, 372 U.S. 246 (1963) ......................................... 6 ,3 5 ,4 3

Norivalk CORE v. Norwalk Redevelopment Agency, 395 
F.2d 920 (2d Cir. 1 9 6 8 ).....................................................24, 25

O'Shea v. Littleton, 414 U.S. 488 (1 9 7 4 )....................... 5, 13, 16

Park View Heights Corp. v. City o f Black Jack, 467 F.2d 
1208 (8th Cir. 1972) .......................................................... 20 ,41

Ranjel v. City o f  Lansing, 417 F.2d 321 (6th Cir. 1969), 
cert, denied, 397 U.S. 980, rehearing denied, 397 U.S. 
1059(1970) ......................................................................... 24 ,41

San Antonio Independent School Dist. v. Rodriguez, 411 
U.S. 1, rehearing denied, 411 U.S. 959 (1 9 7 3 ) ............. 45

Schlesinger v. Reservists Committee to Stop the War,
U.S. , 94 S.Ct. 2925 (1974) .................... 8 ,2 9 ,3 0 ,3 1 ,3 2

School Dist. o f Abington Township v. Schempp, 374 U.S. 
2 0 3 (1 9 6 3 )............................................................................  31

Shannon v. United States Dept, o f Housing & Urb. Dev.,
436 F.2d 809 (3d Cir. 1 9 7 0 )............................................. 24

Sierra Club v. Morton, 405 U.S. 727 (1972) .....................
........................................................................  6 ,1 3 ,3 4 ,3 6 , 37 ,40

Sisters o f  Providence v. City o f Evanston, 335 F. Supp.
396 (N .D. 111. 1 9 7 1 )............................................................ 23 ,41



V
Page

Southern Alameda Spanish Speaking Org. v. City o f 
Union City, 424 F .2d 291 (9th Cir. 1 9 7 0 )..................... 23, 41

Sullivan v. Little Hunting Park, Inc., 396 U.S. 229 
(1969) ...................................................................................  19

Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205 
(1972) ................................................................................8 ,1 9 ,3 8

Tyler v. Judges, 179 U.S. 405 (1 9 0 0 )................................. 9

United Farmworkers o f Fla. Housing Project, Inc. v. City 
o f Delray Beach, 493 F.2d 799 (5th Cir. 1974) .......... 22, 41

United States v. Richardson, U.S. , 94 S. Ct. 2940 
(1 9 7 4 ) ...........................................................2 9 ,3 0 ,3 1 ,3 2

United States v. Students Challenging Regulatory Agency 
Procedures, 412 U.S. 669 (1 9 7 3 )......................... 8 ,1 4 ,1 5 , 25

Village o f Belle Terre v. Boraas, 416 U.S. 1 (1974) ..........  45

Village o f Euclid v. Ambler Realty Co., 272 U.S. 365 
(1926) ...................................................................................  45

Warth v. Seldin, 495 F.2d 1187 (2d Cir.), cert, granted,
U.S. , 95 S. Ct. 40 (1974) . . .3, 21, 22, 23, 33, 38, 43, 45

United States Constitution:

Article I I I ...................................................................................  9

First Amendment.......................................... 26, 27, 29, 30, 31 ,32

Fourteenth Am endm ent......................................................... 32 ,46

Federal Statutes:

42U.S.C. § 1982 ......................................................................  38

42U.S.C. § 3 6 1 0 ...................................................................... 19, 38



Federal Rules of Civil Procedure:

Rule 12(b) ................................................................................. 14
Rule 12(b)(1) .....................   3, 14
Rule 12(b)(6) ..........................................................................  3, 14
Rule 12(e) ................................................................................. 3
Rule 19(a) ................................................................................. 39
Rule 23 (c)( 1 ) ............................................................................  3
Rule 24 ........................................................................................ 42, 43
Rule 43(e) ................................................................................. 14
Rule 5 6 .......................................................................................  14

New Y  ork Civil Practice Law and Rules:

Section 2 1 7 ................................................................................. 42
Article 7 8 ...................................................................................  42

v i
Page



In The

Supreme CEourt o f tije llnttcii States

OCTOBEK TERM, 1974

No. 73-2024

RO BERT W A R T H , e ta l ,  

vs.

Petitioners,

IR A  SELDIN, et al.,
Respondents.

ON W R IT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

BRIEF OF RESPONDENTS

Question Presented

The only question before this Court is whether the various 
individual and corporate petitioners have standing to challenge, 
on Constitutional and statutory theories, the zoning ordinance of 
the Town of Penfield, New York, and fifteen years’ ad­
ministration of that ordinance.

Statement of the Case

This case presents a challenge, on constitutional and federal 
statutory grounds, to the zoning ordinance, and its ad­



2

ministration, of the Town of Penfield, New York, which is a 
town located in Monroe County outside the City of Rochester, 
New York. (A. 13-14).1 The defendants in the district court, 
respondents here, are the Town of Penfield and the individuals 
who comprise its zoning board, its planning board, and its town 
board. (A. 10-13).

The plaintiffs in the district court, all of whom are petitioners 
in this Court, were (1) low-income minority individuals 
(petitioners Ortiz, Broadnax, Reyes, and Sinkler) who reside 
outside the Town of Penfield and who contend that they have 
been excluded from Penfield by its zoning ordinance and its 
administration of the zoning ordinance; (2) real property 
owners and taxpayers of the City of Rochester (petitioners 
Vinkey, Reichert, Warth, Harris, and Ortiz) who contend that 
the real property taxes they must pay to the City of Rochester 
are increased because of Penfield s zoning ordinance and its 
administration of the zoning ordinance; and (3) petitioner 
Metro-Act of Rochester, Inc. (“ Metro-Act” ), a social-action 
corporation active in the Rochester metropolitan area.

The original plaintiffs moved (A. 165-69) for an order 
making petitioner Housing Council in the Monroe County Area, 
Inc. (“ Housing Council” ) an additional party plaintiff. Housing 
Council is a corporation composed of governmental agencies 
and private organizations whose purpose is to study, coordinate 
and assist housing development in the Rochester metropolitan 
area.

A dditionally , petitioner Rochester Hom e Builders 
Association, Inc. (“ Home Builders” ) moved (A. 137-38) for an 
order allowing it to intervene. Home Builders is a trade 
association whose members are active in the home construction 
industry in the Rochester metropolitan area. (A. 145-46).

1 Numbers preceded by “ A ” refer to pages in the Appendix.



3

Respondents, defendants below, moved (A. 120-23): under 
Fed. R. Civ. P. 12(b) (1), for an order dismissing the complaint 
on the ground that none of the plaintiffs had standing; under 
Fed. R. Civ. P. 12(b) (6), for an order dismissing the complaint 
on the ground that it failed to state a claim; in the alternative, 
under Fed. R. Civ. P. 12(e), for an order for a more definite 
statement; and, under Fed. R. Civ. P. 23(c) (1), for an order 
that the case may not proceed as a class action. Additionally, 
respondents opposed plaintiffs’ motion to add Flousing Council 
as a party plaintiff and Home Builders’ motion to intervene.

The District Court for the Western District of New York, in 
an unpublished opinion (A. 948-51), held (1) that the original 
plaintiffs lacked standing, (2) that the complaint failed to state a 
claim, (3) that the action should not proceed as a class action, 
(4) that Housing Council lacked standing, (5) that Home 
Builders lacked standing, and (6) that, in the exercise of 
discretion, Home Builders should not be permitted to intervene. 
Accordingly, it denied plaintiffs’ motion to add Housing 
Council, denied Home Builders’ motion to intervene, and 
granted respondents’ motion to dismiss.

On appeal by all the original plaintiffs, Housing Council, and 
Home Builders, the Court of Appeals for the Second Circuit 
affirmed, reaching only the ground that all appellants lack 
standing. Warth v. Seldin, 495 F.2d 1187 (2d Cir. 1974).

On October 15, 1974, this Court granted certiorari to review 
the questions of standing.-------U.S.-------, 95 S. Ct. 40.

The above outline of who the petitioners are should be 
supplemented with an indication of who they are not. None 
resides in Penfield. None owns any real estate in Penfield. None 
owns any interest in real estate in Penfield. None proposes to 
acquire any real estate in Penfield. None pays any real estate 
taxes to Penfield. None is a builder. None is a developer. None 
proposes to construct any housing in Penfield. None has ever 
applied to any of respondents for a variance from Penfield’s



4

zoning ordinance. None has ever applied to any of respondents 
for a building permit in Penfield. None has ever sought an 
amendment to the zoning ordinance.

It is respondents’ position in this Court that none of the 
petitioners has standing to sue.

Summary of Argument

A. Low-income minority petitioners lack standing under the 
various tests announced by this Court. Of these the practical, 
litigation-oriented test of Baker v. Carr, 369 U.S. 186 (1962), 
which looks from the vantage point of the complaint to the 
efficacy of the trial and its outcome, seems the most useful here. 
These petitioners do not have “ such a personal stake in the 
outcome of the controversy as to assure that concrete ad­
verseness which sharpens the presentation of issues upon which 
the court so largely depends for illumination of difficult con­
stitutional questions.”  369 U.S. at 204. Especially where as here 
the legal ground of the case is constitutional, it is essential that a 
plaintiff be prepared to get down to cases, to bring facts to the 
law, and that the Court scrutinize the complaint to assure that 
he is prepared to do so.

The petitioners here, in their complaint and lengthy motion 
papers, have alleged little more than information about their 
incomes, their dissatisfaction with their present residences and 
statistical information about housing in Penfield which they say 
they have seen. Allegations about anything any respondent did 
that actually affected any of them are wholly absent, and 
allegations about their own efforts to locate housing in Penfield 
are perfunctory and conclusory: in essence, they say no more 
than that “ I looked around and found nothing.”

These petitioners’ allegations do not establish direct injury as 
a result of the enforcement of Penfield’s zoning ordinance, 
Massachusetts v. Mellon , 262 U.S. 447, 488 (1923); or injury 
in fact, Association o f Data Processing Service Organizations,



5

Inc. v. Camp, 397 U.S. 150, 152 (1970); or that there is any 
nexus between their residential situations and zoning in Pen- 
field, Flast v. Cohen, 392 U.S. 83 (1968); Linda R.S. v. 
Richard D., 410 U.S. 614, 617 (1973).

Neither governmental action complained of nor injury is 
alleged with particularity. What is alleged amounts to no 
more than an inference of injury by virtue of an asserted ten­
dency of the ordinance. This is not enough. O ’Shea v. Littleton, 
414 U.S. 488 (1974); Linda R.S. v. Richard D., supra.

In the area of “ open housing”  litigation, the standards of 
concreteness and specificity are no less prerequisites of standing. 
Without exception recognized plaintiffs have been persons with 
an interest in a particular property or particular project, a legal 
interest or a real and definite factual expectation. See citations 
and discussions at pages 18-25 below.

Particularly in a case such as this one in which constitutional 
review of a complicated and highly local legislative mechanism 
is sought, plaintiffs must, especially in light of the practical 
considerations of Baker v. Carr, supra, be able to give the 
lawsuit focus and body and to show the Court the challenged 
legislative mechanism in operation, manifest in their own cases. 
These petitioners are not such plaintiffs.

B. Taxpayer petitioners lack standing under Doremus v. 
Board o f Education, 342 U.S. 429 (1952), under which 
standing requires direct financial injury to the taxpayer as a 
result of a measurable appropriation or disbursement by the 
government to which he is a taxpayer. The Doremus 
requirements of directness and measurability were borrowed 
from Massachusetts v. Mellon, 262 U.S. 447 (1923), which was 
made subject to a single exception by Flast v. Cohen, 392 U.S. 
83 (1968). Flast, however, expressly re-affirmed Doremus as 
the test for non-federal taxpayer standing.



6

The taxpayer petitioners here do not attack a taxing or 
spending measure and make no challenge at all to any action or 
program of the government to which they are taxpayers, the City 
of Rochester. Because of these deficiencies, they cannot allege 
any measurable pocketbook injury with any kind of direct 
causal connection to the zoning ordinance attacked.

C. Organizational petitioners lack standing because none has 
anything more than an interest in a problem. Sierra Club v. 
Morton, 405 U.S. 727 (1972). The only organizational 
petitioner that seeks standing in its own right is petitioner 
Metro-Act of Rochester, Inc. (“ Metro-Act” ), which claims 
standing as a taxpayer of the City of Rochester. As in the case of 
the individual taxpayer petitioners, such status is insufficient.

Each organizational petitioner seeks derivative standing to 
substitute for its members, although there are no “ special cir­
cumstances”  justifying such substitution, as there were in, for 
example, National M otor Freight Traffic A ss’n., Inc. v. United 
States, 372 U.S. 246 (1963); N A A C P v. Button, 371 U.S. 415 
(1963); or N A A C P v. Alabama ex rel. Patterson, 357 U.S. 449 
(1958).

Petitioner Metro-Act seeks derivative standing because of its 
members who are City of Rochester taxpayers, but this fails for 
the same reason the individual taxpayer petitioners fail. Metro- 
Act also seeks derivative standing because of its low-income 
minority members who might want to move to Penfield, but this 
fails for the same reason the individual low-income minority 
petitioners fail. Metro-Act also seeks derivative standing 
because of its members who reside in Penfield. But that claim 
was not made in the complaint. More importantly, Metro-Act 
has not demonstrated how any of its Penfield members has been 
injured by any administrative action or policy of any of 
respondents; there is no allegation, for example, that any Metro- 
Act Penfield member has ever applied for a zoning variance, 
zoning amendment, building permit, or special permit.



7

Petitioner Housing Council in the Monroe County Area, Inc. 
(“ Housing Council” ) seeks only derivative standing. One of its 
members, Metro-Act, lacks standing in its own right and cannot 
give Housing Council derivative standing. Its members who are 
governmental agencies can give it no standing because there is 
no showing that any has anything other than an interest in a 
problem. Its members who are organizations that are themselves 
comprised of low-income minority members cannot give double 
derivative standing for the same reason the individual low- 
income minority petitioners lack standing. Penfield Better 
Homes Corporation cannot give Housing Council derivative 
standing because it cannot pursue its own claims in its own 
right.

Petitioner Rochester Home Builders Association, Inc. 
(“ Home Builders” ), seeks only derivative standing. But it 
makes no showing that any of its members are prepared, or even 
willing, to construct low-income housing in Penfield or that any 
of them has ever tried in the past.

Argument

Each of the various individual and corporate petitioners 
lacks standing to challenge, on various constitutional and 
statutory theories, the zoning ordinance of the Town of 
Penfield, New York, and fifteen years’ administration of 
that ordinance.

We are well aware that standing is the type of inquiry that 
must largely be made on a case by case basis. Association o f 
Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 
150, 151 (1970). General principles from and specific textual 
passages of specific cases may illustrate the standing issues in a 
particular case, but the standing question in that particular case 
must focus on its particular plaintiffs. Flast v. Cohen, 392 U.S. 
83, 99 (1968). No plaintiff has ever been granted standing to 
sue who lacked as many of the indicia of plaintiffhood as do 
these petitioners.



8

A. L ow -Incom e M inority Individuals

Petitioners Ortiz, Broadnax, Reyes and Sinkler lack standing 
under the tests announced by this Court.

Of these tests the one in Baker v. Carr, 369 U.S. 186 (1962), 
seems to us the most useful for the purposes of this case. Both 
that case and this one involved state or local legislation 
measured against the Fourteenth Amendment. Unlike United 
States v. Students Challenging Regulatory Agency Procedures, 
412 U.S. 669 (1973), and Trafficante v. Metropolitan Life Ins. 
Co., 409 U.S. 205 (1972), for example, the standing issue in 
Baker v. Carr did not arise out of a federal agency context in 
which specific congressional legislation could be invoked as a 
guide; nor does it here. The standing issue in Baker v. Carr was 
not influenced, as it seems to have been in Flast v. Cohen, 392 
U.S. 83 (1968), by the presence in the case of issues on the 
merits arising from the Establishment Clause of the First 
Amendment. The same is true in this case.

In ruling on the standing question in Baker v. Carr, the Court 
looked ahead from the vantage point of the complaint to the 
trial, and beyond the trial to the outcome of the litigation. The 
gist of the question of standing, the Court said, is whether the 
plaintiff has “ alleged such a personal stake in the outcome of the 
controversy as to assure that concrete adverseness which 
sharpens the presentation of issues upon which the court so 
largely depends for illumination of difficult constitutional 
questions.”  369 U.S. at 204.

The idea is not simply to itemize the plaintiff’s characteristics, 
isolated from the practical considerations of litigation. Standing, 
under Baker v. Carr at least, does not emerge from a recitation 
of details that describe and identify the plaintiff. It is not enough 
to allege, as the plaintiffs have done in the case now before the 
Court, that in effect, “ We are real people with real problems.”  
That much is true of all people. See Schlesinger v. Reservists
Committee to Stop the War, -------U.S.-------, 94 S. Ct. 2925
(1974).



9

Baker v. Carr formulates a practical test of standing. Its test 
does not ask theoretical questions. It asks what this plaintiff, 
personally, has to gain from this lawsuit. It asks whether, at a 
trial, this plaintiff will bring facts to the law. It asks not only 
whether there are differences between the parties but whether 
there is a “ concrete adverseness”  which promises at a trial to 
cause unparticularized constitutional concepts to coalesce into a 
factual precipitate.

What is a bare jurisdictional minimum in terms of these 
considerations, that is, what crystalizes the plaintiff’s differences 
with the defendants into a case or controversy within the 
meaning of Article III, and what in terms of these con­
siderations is a matter rather of judicial wisdom about the 
probable efficacy of a trial, is disputable. But, perhaps because 
of the greater danger of abstractness and the more far-reaching 
effects of the decision when the legal ground of the lawsuit is 
constitutional rather than statutory, the Court in Baker v. Carr 
referred the importance of a personal stake in the outcome, of 
concrete adverseness and of a sharp presentation of the issues to 
the courts’ need for “ illumination of difficult constitutional 
questions.” 2 When the law to be applied is the ‘Constitution, 
more than ever it is essential that a plaintiff get down to cases 
and that the Court scrutinize the complaint to assure that he is 
really prepared to do so.

These petitioners are not.

Of petitioner Andelino Ortiz the complaint tells us only that 
he is a resident of Wayland, New York and the owner of real

2The recognition of the necessity in constitutional litigation of a personal stake in 
the outcome of the lawsuit was not new with Baker v. Carr. This Court has long 
held that it is insufficient for a would-be plaintiff to show “ merely that he suffers 
in some indefinite way in common with people generally,”  Massachusetts v. 
Mellon, 262 U.S. 447, 488 (1923), or that he merely seeks “ to require that the 
Government be administered according to law and that the public moneys be not 
wasted,”  Fairchild v. Hughes, 258 U.S. 126, 129 (1922). Rather, he must allege 
“ a direct injury,” Ex parte Levitt, 302 U.S. 633, 634 (1937), “ an injury peculiar 
to himself,” Tyler v. Judges, 179 U.S. 405, 406 (1900).



10

property in the City of Rochester, New York; that he is of 
Spanish/Puerto Rican extraction; that he was at one time 
employed in the Town of Penfield; and that he “ has been ex­
cluded from living near his employment as he would desire by 
virtue o f”  the zoning ordinance and administration of the Town 
of Penfield. (A. 6-7).

Mr. Ortiz’s 39-page affidavit (A. 362-401), submitted in 
opposition to respondents’ motion to dismiss in the district 
court, does not reveal what he stands to gain from this litigation 
or what concrete differences he has with any of the respondents. 
It gives some additional facts about his background —  his age, 
his family, his earnings at the time the lawsuit was commenced. 
(A. 364-67). It says that he was no longer working in the Town 
of Penfield at the time of the original motion (A. 366) and was 
unemployed as of that time. (A. 367-68). It expresses 
dissatisfaction with his residences since 1966. (A. 365, 368-69, 
372-73). It says that he owns a house near Wayland, New York, 
which he purchased in 1968 for $9,500.00 (A. 372) and that the 
house he owns in Rochester has been converted into rental 
property. (A. 373-74). It discusses his residential expenses (A. 
374-75) and his commuting expenses when he was working in 
Penfield <A. 376-77).

The balance of the affidavit incorporates some statistical 
information on housing costs compiled by petitioner Metro-Act 
(A. 370-72) and recites at considerable length the reasons why 
Mr. Ortiz regards the Town of Penfield as a more desirable 
place to live than the Springwater/Wayland area where he 
presently resides (A. 377-400). These include better schools (A. 
377-80, 383-91), better municipal services (A. 381, 395-98), 
better recreational facilities and services (A. 381-83, 391-95), 
better shopping opportunities (A. 398-99), and better summer 
employment possibilities for his children (A. 399-400). This 
comparative information, Mr. Ortiz says, has been called to his 
attention by petitioner Metro-Act. (A. 377, 383).



11

Mr. Ortiz speaks repeatedly of his being excluded from 
Penfield, but this assertion rests entirely on two things: (1) 
statistical information about the cost of housing in Penfield, 
which was compiled by Metro-Act and which Mr. Ortiz says he 
has seen (A. 371-72) and (2) a recitation of Mr. Ortiz’s efforts to 
find housing in Penfield.

The whole of this recitation of efforts is as follows:

Since my job at that time and continuing until May of 
1972 was in the Town of Penfield, I  initiated inquiries 
about renting and/or buying a home in the Town of 
Penfield. However, because of my income being low or 
moderate, I found that there were no apartment units 
large enough to house my family of wife and seven 
children, nor were there apartment units that were 
available reasonably priced so that I could even afford to 
rent the largest apartment unit. I have beeri reading ads 
in the Rochester metropolitan newspapers since coming 
to Rochester in 1966 and during that time and to the 
present time, I have not located either rental housing or 
housing to buy in Penfield. (A. 370) (emphasis added)

These are rather casual efforts, initiating inquiries and 
reading ads. The initiative exerted by the other individual 
petitioners is similarly scant.

Petitioner Clara Broadnax, in her affidavit of 17 pages (A. 
404-21), says that she “ bought newspapers and read ads and 
walked to look for apartments until I found the place where I 
now reside. I found that there was virtually no choice of housing 
in the Rochester area.”  (A. 407). In connection with the efforts 
she made she does not mention Penfield.

Petitioner Angela Reyes, in her affidavit of 13 pages (A. 422- 
34), says that moving into her present house in the City of 
Rochester

was the culmination of my husband and my shopping 
around the entire Rochester area to locate a house which 
we could afford to buy. We began this search by con­



12

tacting a real estate broker and finally securing the help 
and interest of one real estate broker. . . .  [0]ur in­
vestigation for housing included the Rochester bedroom 
communities of Webster, Irondequoit, Penfield and 
Perinton. Our search over a period of two years led us to 
no possible purchase in any of these towns. (A. 427-28).

She says that there was in Penfield “ no possibility of finding a 
house costing less than $35,000.00.”  (A. 429). She says that she 
has two small sons (A. 424) and has a disposable income for 
housing purposes of approximately $231.00 per month (A. 
428).

Yet her allegations about the housing situation in Penfield are 
unexplained, undocumented and conclusory. She does not say 
what efforts she or anyone on her behalf ever actually made to 
find housing in Penfield. She does not say what properties, if 
any, she actually looked at. She does not say what she has looked 
for —  a house to own or rent, a duplex, an apartment, a mobile 
home, or whether the scope of her “ shopping around”  was 
limited by personal preferences or by necessities. She does not 
say how she has determined the minimum costs of housing to 
which she swears or to what kinds of “ house”  the $35,000 figure 
applies. We do not know either what unexpressed refinements of 
meaning are contained in the phrases “ no possible purchase”  
and “ no possibility of finding.”

Petitioner Rosa Sinkler, in her affidavit of 21 pages (A. 435- 
55), says that “ there is just no housing to rent in the City of 
Rochester for a person of my low income.”  (A. 451). She says,

In the past I have searched for alternate housing in the 
Rochester metropolitan area and I am continually alert 
to other possibilities for housing. . . . Realistically, after 
careful search for adequate housing in the Rochester 
metropolitan area over a six year period, I have found 
that a black person has no choice of housing in the 
Rochester metropolitan area. (A. 452).



13

She says, “ For example, there are no apartments available in the 
Town of Penfield which a person of my income level can af­
ford.”  (A. 452-53). “ I have sought housing accommodations in 
the Rochester metropolitan area, including the Town of Penfield 
—  all to no avail because I am a black person of low income.”  
(A. 453)

None of the four makes any allegation about anything that 
any of the respondents actually did, any action they took or 
refused to take.

From none of the angles from which standing may be 
examined does it appear that any of these four persons has it. 
There is no nexus here between the petitioners’ own situations 
and the governmental action of which they complain. Flast v. 
Cohen, 392 U.S. 83 (1968). There are no allegations which 
suggest any direct injury as a result of the enforcement of 
Penfield’s ordinance. Massachussetts v. Mellon, 262 U.S. 447, 
488 (1923). “ [A]t least in the absence of a statute expressly 
conferring standing, federal plaintiffs must allege some 
threatened or actual injury resulting from the putatively illegal 
action before a federal court may assume jurisdiction.”  Linda 
R.S. v. Richard D., 410 U.S. 614, 617 (1973) (footnote 
omitted). A “ party seeking review must himself have suffered an 
injury.”  Sierra Club v. Morton, 405 U.S. 727, 738 (1972) 
(emphasis added). And the injury must be injury in fact. 
Association o f Data Processing Service Organizations, Inc. v. 
Camp, 397 U.S. 150, 152 (1970). Speculative or conjectural 
injury is not enough. O ’Shea v. Littleton, 414 U.S. 488, 497 
(1974). There are in the some nine hundred pages of the record 
really no allegations, except of the most conclusory sort, of 
injury that happened to a petitioner because of something that a 
respondent did.

On the subject of the directness of injury and its causation, it 
is true that this Court has found standing when the injury was 
not highly “ direct and perceptible,”  when the line of causation



14

was “ attenuated.”  United States v. Students Challenging 
Regulatory Agency Procedures, 412 U.S. 669, 688 (1973). 
But, aside from the difference here that papers warranting 
summary judgment on the standing issue were made available to 
the district court (id. at 6 8 9 ),5 there was a definite starting point 
for the line of causation in SCRAP, a specific agency action. The 
petitioners did not challenge the whole of the Interstate 
Commerce Commission Act, as petitioners here have challenged 
the whole of the Penfield zoning ordinance, and 38 years’ ad- * 6

5 Petitioners, relying on Jenkins v. McKeithen, 395 U.S. 411, 421, rehearing 
denied, 396 U.S. 869 (1969), argue that all their factual allegations, even if 
unsupported, must be accepted as true. Petitioners’ position reaches too far. The 
record in this case, as printed in a two-volume Appendix, consists of 56 pages of 
complaint and proposed intervenor’s complaint (A. 1-35, 144-63), 81 pages of 
Penfield’s zoning ordinance (A. 36-116), a 10-page affidavit by respondents’ 
counsel (A. 124-33), 15 pages of affidavits and an exhibit in support of 
petitioners’ motions to add new parties (A. 139-43, 170-79), and 767 pages of 
affidavits and exhibits in opposition to respondents’ motion to dismiss (A. ISO- 
947), including an affidavit by each named plaintiff. This case is much different 
from cases such as SCRAP, where the Court has only the pleadings.

Such a record, with petitioners clearly having and taking every opportunity to 
put forth every fact in support of their position, is precisely the situation con­
templated by Federal Rule of Civil Procedure 12(b)’s conversion of a Rule 12(b)
(6) motion to dismiss into a Rule 56 motion for summary judgment. Carter v. 
Stanton, 405 U.S. 669, 671 (1972). Petitioners had every opportunity to place 
in the record every fact they deemed relevant, and the court was free to consider 
their affidavits. Fed. R. Civ. P. 43(e). Although the district court did not in­
dicate whether it treated respondents’ motion as a Rule 56 motion, the court of 
appeals clearly relied on petitioners’ affidavits.
Actually, Rule 12(b)'s conversion feature is technically inapplicable here. Since 
standing is necessary to jurisdiction, respondents’ motion to dismiss for lack of 
standing was probably granted under Rule 12(b) (1 1, not under Rule 12(b) (6) 
(although the district court also dismissed the complaint for failure to state a 
claim, which had to be under Rule 12(b) (6)). In any event, the court was free to 
consider the affidavits under Rule 43(e).
We certainly acknowledge that many of petitioners’ factual showings were, for 
purposes of the motions, uncontested below and may be so considered by this 
Court. But that concession does not extend to all of petitioners’ conclusory 
“ facts” when they are unsupported by anything in the record. For example, 
petitioners’ mere use of phrases like “ racial discrimination” and “ injury in fact’ 
and “ exclusion” does not elevate such conclusions into “ facts” where the record 
gives them no support. And a claim by a petitioner that he “ searched” for 
housing in Penfield is really of little assistance to this Court in the absence of 
supporting details.



15

ministration of it by the Commission, as petitioners here have 
challenged 15 years’ administration by respondents and their 
predecessors. (A. 17). Agency action was alleged with par­
ticularity in SCRAP , and so was injury. In the present case, not 
only is the line of causation not traced but the end points, 
government action and injury, are completely out of focus. By 
the standards of Baker v. Carr, with its view to a sharp 
presentation of the issues, the present case is readily 
distinguished from SCRAP.

These petitioners have tried to spell out injury in two ways. 
The factual descriptions in their affidavits dwell almost com­
pletely on the first of these: that they individually do not have 
very much money. But that situation is not a direct injury 
resulting from the enforcement of the Penfield zoning ordinance. 
The allegation of low income and certain of its attendant cir­
cumstances is being put to double service in the complaint and 
motion papers. Insofar as it recites the occasion for injury it 
could be an appropriate starting point, but it is nowhere causally 
connected to the respondents; it will therefore not suffice under 
existing cases, and the concept which underlies them, as injury 
in fact.

The petitioners also allege that, as a function of their low 
income, they are excluded from residing in Penfield because of 
the zoning ordinance and its administration. The injury under 
this theory is not poverty but exclusion on the basis of it: 
Penfield’s zoning is such, petitioners say, that persons of low 
income are excluded from the Town and consigned to bad living 
conditions —  shabby homes, high crime rates, poor schools. In 
the vastness of the record, however, the petitioners never get 
beyond this formula statement.

Injury of this kind, exclusion and consignment to bad neigh­
borhoods, is not, as set forth in petitioners’ papers, injury in 
fact; it is injury by supposition. The record is devoid of events. 
For purposes of standing, “ injury or threat of injury must be



16

both ‘real and immediate,’ not ‘conjectural’ or ‘hypothetical.’ ”  
O ’Shea v. Littleton, 414 U.S. 488, 494 (1974). Here the 
allegation of injury by exclusion is wholly by general assertion 
and inference. Id. at 497.

The complaint of these petitioners alleges that Town officials 
have failed to grant variances, building permits and special 
permits (A. 17), but their affidavits reveal that none of them has 
ever applied for any of these things. The complaint says that the 
respondents have failed to amend the zoning ordinance in the 
ways petitioners would have it amended (A. 19), but their af­
fidavits show that none of these petitioners has engaged with any 
official or body of the Town over such a proposal, or in any 
manner whatever attempted to exert an influence over either the 
administrative or the political process in the Town of Penfield.

Far from having availed themselves of any local govern­
mental procedures, none of these four took action of their own, 
so far as their papers reveal, which was calculated to locate 
housing in Penfield. There does not appear in the record any 
profound commitment to finding a home there or the kind of 
effort which reflects such a commitment. The richest allegation 
in the record is of a desultory “ shopping around”  leading to the 
conclusion “ no possibility.”  (A. 427-29)

In its essence the complaint here is generally similar to the 
one described in O ’Shea v. Littleton, supra, 414 U.S. 488, 
alleging that the respondents have engaged in and continue to 
engage in a pattern of conduct which deprives the plaintiffs of 
their constitutional rights. Id. at 495. But if that is the tendency 
of Penfield’s zoning, one cannot tell it from anything these 
petitioners have done; they allege the tendency, but they have 
never tested itv

The absence of injury here means the absence of a personal 
stake in the outcome of the litigation. Officials of the Town have 
denied nothing to any of the petitioners which a judgment of the 
district court can provide them. If the worst allegations of the



17

complaint were true, moreover, and the district court ordered a 
redrawn zoning ordinance, it is far from clear that any of these 
individual petitioners would be affected by that judgment. 
Would petitioner Reyes, for example, be interested in “ shopping 
around”  at some future time? That is a matter of speculation, as 
it is a matter of speculation what she has looked for in the way of 
housing in the past and what she would be looking for in the 
future. What resulted might not suit her residential preferences 
or her needs. Penfield itself might not be suitable.

Even where the plaintiff’ s injury is real and personal, far 
more so than it is here, the nexus between the status asserted and 
the claim presented is “ essential to assure that he is a proper and 
appropriate party to invoke federal judicial power.”  Linda R.S. 
v. Richard D., supra, 410 U.S. at 618, quoting Flast v. Cohen, 
supra, 392 U.S. at 102. Even if petitioners were granted the 
relief requested, the prospect that a redrawn ordinance would in 
the future result in housing satisfactory to them wherein they 
would choose to take residence or be in a position to take 
residence can, at best, be termed only speculative. Cf. Linda 
R.S. v. Richard D., supra, 410 U.S. at 618.

Linda R.S. did not claim injury by mere virtue of statutory 
tendency. She sued on behalf of herself and her minor daughter 
to have a Texas child support statute declared unconstitutional 
and to enjoin law enforcement officials from refusing to enforce 
it against fathers of illegitimate children. She was the mother of 
an illegitimate child, whose father was not supporting it. She 
had made application to the local district attorney, and he had 
refused to take action. Her adverseness to both father and public 
officials could hardly have been more concrete, or her economic 
injury more factual; and her personal stake in the outcome was 
the receipt of financial support by virtue of the coercive effect of 
criminal prosecution. But the hiatus between prosecution and 
support defeated her standing; her stake in the outcome was 
insufficient because of the intervening contingency.



18

In denying standing, the Court in the case of Linda R.S. 
noted “ the unique context of a challenge to a criminal statute.”  
410 U.S. at 617. But there is one distinction that it would not be 
proper to draw between that case and this one: namely that, if 
the requested relief were granted, achievement of the desired 
effect would be out of Linda’s hands, while it would be within 
the power of these petitioners to obtain it. There are no 
guarantees in either case of plaintiffs’ achieving the desired 
objective, child support in the one case or a residence in Penfield 
in the other. If the statute’s protection had been extended to her 
case, however, Linda would have had the continuing coercive 
power of it at her disposal. The particularity of her need and the 
extent of her past effort promised that she would use it —  much 
more so than the alleged “ shopping around” and reading of ads 
promises that the present petitioners will ever benefit from the 
new zoning ordinance they have requested. Her injury was a 
good deal less suppositious, and her stake in the outcome was 
certainly no more so, than that of these petitioners.

In Linda R.S. v. Richard D., moreover, a sharpened 
presentation of the issues was most likely. Constitutional review 
of the Texas statute would have taken place in the context of 
concrete adversary relationships, and the challenged law could 
have been scrutinized in operation, manifested in her dilemma. 
Here a far more complicated legislative scheme with far more 
complicated enforcement mechanisms is challenged, and none of 
these petitioners can show a federal court its workings.

All of the so-called “ open housing”  cases preceding this one, 
both in this Court and in the lower courts, involved degrees of 
concreteness and specificity totally lacking in the present suit.

For example, Buchanan v. Warley, 245 U.S. 60 (1917), the 
first of the “ open-housing”  cases decided by this Court, was a 
case between the immediate parties to a contract for the sale of a 
specific parcel of land. The case involved only the right of a 
property owner to sell to whomever he wishes. 245 U.S. at 73.



19

Similarly, Barrows v. Jackson, 346 U.S. 249, rehearing denied, 
346 U.S. 841 (1953), was an action by property owners for 
damages because of a breach of a racially restrictive covenant; 
judgment for plaintiff would have caused “ a direct, pocketbook 
injury”  to the seller who had breached the covenant. 346 U.S. at 
256. Sullivan v. Little Hunting Park, Inc., 396 U.S. 229 
(1969), involved a lease of a house and attendant rights to 
recreation facilities. The white ownerdessor clearly had standing 
to enforce his own right to lease his own house to whomever he 
wished, even though part of his argument would also enforce the 
rights of minority lessees. 396 U.S. at 237.

In Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205 
(1972), plaintiffs were tenants in a particular apartment 
complex alleging that their own owner-landlord injured plain­
tiffs by a racially discriminatory renting policy. The rights of 
non-tenants were not involved at all, except as evidence of the 
owner-landlord’s discrimination.

The action against the owner-landlord brought under Section 
810(d) .of the Civil Rights Act of 1968, not pleaded in this case, 
charged it with discrimination against nonwhite applicants in 
numerous identified ways and sought injunctive relief. The 
action was brought only after complaints filed by the plaintiffs 
with the Secretary of Housing and Urban Development and the 
subsequent efforts of that federal agency and the appropriate 
state agency had failed to secure voluntary compliance with the 
Act. The plaintiffs therefore not only were tenants of the 
complex in which the alleged abuses were being practiced but 
had sharpened and ripened the dispute with their owner- 
landlord by exhausting the administrative remedies available to 
them. The Court concluded, moreover, that both congressional 
intention and federal agency construction established that 
tenants such as plaintiffs were aggrieved persons within the 
meaning of the Act and indeed that the primary method of 
enforcing the Act was complaints by such persons.



20

This same degree of concrete specificity has also been in­
volved in all, or at least nearly all, of the lower court cases 
constituting the recent “ open housing”  field. Petitioners and 
their friends cite to several lower court opinions that they 
contend should lead this Court to grant standing here. Actually, 
all those cases demonstrate is that so-called “ open housing”  has 
been an active field of litigation in the federal courts throughout 
the country; undoubtedly the mere existence of some of 
petitioners and some of the amici is proof enough of wide social 
concern in the issue. But none of the cases relied on has extended 
the standing principles enunciated by this Court far enough to 
include these petitioners.

In Park View Heights Corp. v. City o f Black Jack, 467 F.2d 
1208 (8th Cir. 1972), one corporate plaintiff had purchased a 
specific 11.9-acre parcel of land and had advanced “ seed 
money”  for a specific project’s planning. The other corporate 
plaintiff was acting as a sponsor of the project and held title to 
the land. The Department of Housing and Urban Development 
had issued a “ feasibility letter,”  which was “ tantamount to a 
contractual obligation to assist a project.”  467 F.2d at 1211. 
Further, architectural plans had been completed and approved, 
mortgage financing had been secured, and legal and 
organizational financing had been completed. Id. Defendant 
City of Black Jack had been newly incorporated, after vocal 
citizen opposition to the project, and almost immediately 
adopted a zoning ordinance that would forbid construction of 
the project. The court held that both corporate plaintiffs had 
standing because of their direct economic investment and in­
terest in this project. The corporate plaintiffs also had standing 
to assert the constitutional and statutory rights of individuals 
who desired to move into the project. At least partly because the 
individual plaintiffs’ rights would be litigated, the court granted 
them standing to challenge the zoning ordinance. The court’s 
main concern was whether their claims were “ ripe; ”  because the 
developers were prepared to proceed with the project and were



21

stopped only by the defendants’ actions, the court found the 
individuals’ claims sufficiently “ concrete”  to be ripe for ad­
judication. 467 F.2d at 1215. But it was plaintiffs’ focus on a 
specific project, not their abstract complaints as to their present 
poor housing, that opened the federal court’s door to them:

As near as one can determine from the pleadings in this 
case, the plaintiffs need only to resolve this zoning 
controversy to begin construction of the apartments. 467 
F.2d at 1215.

That is exactly the reasoning of the court below when it properly 
distinguished the present petitioners:

The focusing of the controversy on a particular project 
assures “ concrete adverseness.”  The concrete possibility 
of obtaining new and better housing gives potential 
residents a personal stake in the outcome. The relief 
requested is not hypothetical. Warth v. Seldin, supra,
495 F.2d at 1192.

In Crow v. Brown, 457 F.2d 788 (5th Cir. 1972), aff’g. 332 
F. Supp. 382 (N .D. Ga. 1971), plaintiffs and an intervenor 
owned specific parcels of land, zoned for apartments, on which 
they proposed to build low-income, federally sponsored public 
apartments. They had prepared “ elaborate plans”  for the 
construction, and “ all building code and planning 
requirements”  were satisfied. 332 F. Supp. at 384. They were 
joined by plaintiffs and intervenors on the waiting list of the 
local public housing authority for low-rent public housing who 
claimed they were being denied access to low-rent housing 
outside racially concentrated areas. Again, the court of appeals 
in the instant case properly distinguished Crow v. Brown. Warth 
v. Seldin, supra, 495 F.2d at 1191 n.6 at 1192.

In Kennedy Park Homes A ss ’n., Inc. v. City o f Lackawanna, 
436 F.2d 108 (2d Cir. 1970), cert, denied, 401 U.S. 1010 
(1971), one corporate plaintiff had a commitment to purchase a 
specific parcel of land from another corporate plaintiff. A third 
corporate plaintiff had been organized as a housing or mort­



22

gagor company. The Federal Housing Authority had initially 
approved federal financial assistance. A professional housing 
consultant and an engineer had been hired. All that the specific 
project lacked was one sewer form, which defendant mayor 
refused to sign. If plaintiffs could obtain that signature, “ the 
consummation of the project could be effected.”  436 F.2d at 
112. They were joined by “ individual home seekers,”  436 F.2d 
at 109, who were not otherwise mentioned in the court’s 
opinion. The court of appeals in the instant case quite properly 
distinguished Kennedy Park. Warth v. Seldin, supra, 495 F.2d 
at 1191 n.6.

In Dailey v. City o f Lawton, 425 F.2d 1037 (10th Cir. 
1970), a ff’g. 296 F. Supp. 266 (W .D. Okl. 1969), the corporate 
plaintiff proposed to build a privately sponsored low-income 
housing project on a particular site. It owned the land in 
question, had applied for a zoning amendment, had done 
everything necessary to build, and had prepared preliminary 
plans and specifications. 296 F. Supp. at 268. The other 
plaintiff was a potential renter of space in that very project. As 
was true with Park View, the court of appeals below quite 
properly distinguished the concrete issues in Dailey from the 
abstract hopes involved here. Warth v. Seldin, supra, 495 F.2d 
at 1192.

In United Farmworkers o f Fla. Housing Project, Inc. v. City 
o f Delray Beach, 493 F.2d 799 (5th Cir. 1974), the corporate 
plaintiff had acquired an option to purchase a specific parcel of 
land, which was already zoned for multiple family dwellings. 
Zoning was not even at issue; the only issue was the 
municipality’s refusal to allow the proposed project to tie into 
existing sewer and water lines. 493 F .2d at 805. The project had 
been given high funding priority by the Farmer’s Home Ad­
ministration. 493 F.2d at 804 n.7. Individual farmworkers were 
also plaintiffs, but they were mentioned by the court only in 
affirming the denial of class action status. 493 F.2d at 812.



23

In Southern Alameda Spanish Speaking Org. v. City o f Union 
City, 424 F.2d 291 (9th Cir. 1970), the corporate plaintiff 
had acquired an option on a specific parcel of land and had had 
it rezoned for multi-family residential use; it had paid $6,000 
for the option. 424 F.2d at 294 n.5. “ The rights asserted are 
those of a landowner (SASSO) to be free from arbitrary 
restrictions on land use.”  424 F.2d at 294. The other plaintiffs 
are not identified by the court. SASSO was properly 
distinguished by the court of appeals in the instant case. Warth 
v. Seldin, supra, 495 F.2d at 1191 n.6 at 1192.

In Sisters o f Providence v. City o f Evanston, 335 F. Supp. 
396 (N.D. 111. 1971), one corporate plaintiff owned a specific 
parcel of land and had contracted to sell it to another corporate 
plaintiff who proposed to build a housing development, the sale 
being contingent on the parcel’s rezoning. Both had standing 
because of their interest in the property, and plaintiff buyer was 
also allowed to assert rights of those who would be denied 
housing if the parcel were not rezoned. 335 F. Supp. at 400-01. 
Individual plaintiffs also had standing as potential residents of 
the project in question, and class action status was granted. 335 
F. Supp. at 401-02. Two neighborhood groups interested in low 
and moderate income housing were also granted standing, at 
least so they could attempt to demonstrate that there was a 
compelling need that they represent rights of persons not im­
mediately before the court. 335 F. Supp. at 401. As to each 
plaintiff, however, the court indicated that standing was only 
conditional. 335 F. Supp. at 400. The court of appeals in the 
instant case properly distinguished Sisters. Warth v. Seldin, 
supra, 495 F.2d at 1191 n.6 at 1192.

In Banks v. Perk, 341 F. Supp. 1175 (N .D. Ohio 1972), 
a ff’d in part & rev ’d in part, 473 F.2d 910 (6th Cir. 1973), 
plaintiffs were and represented tenants in and applicants for 
public housing. They sought (1) to enjoin the revocation of 
building permits for two specific public housing projects and (2) 
to enjoin the previous site selection process for future housing.



24

As to the first item, they were joined by the corporation who 
would develop and administer the two projects. 341 F. Supp. at 
1177.4 This case was affirmed in part and reversed in part 
without opinion. 473 F.2d 910.

Similarly, plaintiff in Morales v. Haines, 486 F.2d 880 (7th 
Cir. 1973), had entered into a contract to purchase a specific 
house to be built by a specific builder. And in Ranjel v. City of 
Lansing, 417 F.2d 321 (6th Cir. 1969), cert, denied, 397 U.S. 
980, rehearing denied, 397 U.S. 1059 (1970), a developer had 
prepared plans and specifications for a project on a particular 
site, which had already been rezoned.

Other types of “ housing”  cases offer no assistance to 
petitioners. Residents in and applicants for public housing have 
been held to have standing to challenge specific site selections, 
e.g., Blackshear Residents Org. v. Housing Auth., 347 F. Supp. 
1138 (W .D. Tex. 1972); Banks v. Perk, supra; Gautreaux v. 
Chicago Housing Auth., 265 F. Supp. 582 (N.D. 111. 1967), as 
do neighbors of a specific project, e.g., Shannon v. United States 
Dept, o f Housing & Urb. Dev., 436 F.2d 809 (3d Cir. 1970). 
Individuals have been held to have standing to sue for admission 
to a public housing waiting list. E.g., King v. New Rochelle
Municipal Housing Auth., 442 F.2d 646 (2d Cir.), cert, denied, 
404 U.S. 863 (1971); Cole v. Housing Auth., 435 F.2d 807 
(1st Cir. 1970). A housing authority itself has standing. E.g., 
Cuyahoga Metropolitan Housing Auth. v. City o f Cleveland, 
342 F. Supp. 250 (N .D. Ohio 1972), a ff’d sub nom. Cuyahoga 
Metropolitan Housing Auth. v. Harmody, 474 F.2d 1102 (6th 
Cir. 1973). And, of course, individual displacees or prospective 
displacees of an urban renewal project have standing. E.g., 
Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d

4Amicus National Committee Against Discrimination in Housing is simply 
mistaken when it says that the builder of the proposed projects “ is conspicuous 
by his absence." Quite the contrary; the developer was a defendant and cross- 
claimed against the other defendants on plaintiffs’ Count I.



25

920 (2d Cir. 1968) ; 5 Garrett v. City o f Hamtramck, 335 F. 
Supp. 16 (E.D. Mich. 1971), supplemental order, 357 F. Supp. 
925 (1973).

The case which petitioners Ortiz, Broadnax, Reyes and 
Sinkler seek to litigate has none of the specificity, concreteness, 
and faetuality which are the prerequisites of standing. This is so 
with respect to each of the components of every available 
standing test. In the cases which we discuss in this brief, it is true 
that one or another of these components is sometimes more 
blurred than is usual —  injury in Flast, for example, and 
causation in SCRAP. In none of them, though, is there such a 
complete lack of focus as there is here; nothing stands out clear 
in the foreground in this case.

There is no identified provision or governmental action 
challenged. There is no occasion alleged on which the petitioners 
engaged with any officials in the Town. There is no housing 
project or apartment complex or piece of ground in the com­
plaint. There is no interest in property or application for 
residence. There is no investment of money or effort by the 
petitioners. There is no remedy sought which, if granted, will 
affect them personally.

What the complaint offers is a zoning ordinance which the 
petitioners allege is exclusionary on its face and the allegation 
that they, as low income persons who reside in the general 
metropolitan area of which Penfield is a part, are victims of its 
exclusionary tendencies. They must stand or fall on that much.

Under the litigation-oriented test of Baker v. Carr, these four 
petitioners could hardly be less suited to provide the district 
court with sharp presentation of the issues at a trial. If personal 
stake in the outcome, concrete adverseness and the concept of 
injury in fact from Data Processing are measured with a view to

5Norwalk declined to decide whether the association plaintiffs had standing. 395 
F.2d at 937-38.



2 6

that practical end, then this constitutional challenge to fifteen 
years’ of Penfield zoning, with all its complexities and wealth of 
local problems, must fall for the lack of standing of the 
petitioners.

B. Taxpayers

Petitioners Vinkey, Reichert, Warth, Harris, and Ortiz sue as 
“ property owners and taxpayers of the City of Rochester,”  
claiming that they

are aggrieved in that they are paying a greater 
proportionate share of real estate taxes to the City of 
Rochester than are other residents of the Rochester 
metropolitan area to their respective towns because the 
City of Rochester has and must continue to permit more 
than its fair share of tax abated housing projects within 
its territorial limits to meet the low and moderate income 
housing requirements of the metropolitan Rochester 
area by reason of the exclusionary practices of 
[respondents]. (A. 5).

As such, they have no standing to bring this lawsuit.(>

The lack of standing of these taxpayer petitioners can be 
expressed largely in terms of a single decision, Doremus v. 
Board o f Education, 342 U.S. 429 (1952). For non-federal tax­
payer standing, Doremus requires direct financial injury to the 
taxpayer as a result of a measurable appropriation or disburse­
ment by the government to which he is a taxpayer. Moreover, 
although the law relating to federal taxpayer standing first 
announced in Massachusetts v. Mellon, 262 U.S. 447 (1923), 
has been made subject to an exception in Flast v. Cohen, 392 
U.S. 83 (1968), the law of Doremus remains solid. Indeed, that 
law was expressly reaffirmed in Flast v. Cohen.

Doremus, in which taxpayers challenged Bible reading in 
school under the Establishment Clause, was distinguished by

^None of the four amici curiae supports the taxpayer petitioners.



27

the Court from Everson v. Board o f Education, 330 U.S. 1 
(1947), another Establishment Clause case involving a law that 
provided for the reimbursement of parents of parochial school 
children for their expenditures for their children’s public trans­
portation to and from school, on the ground that Everson in­
volved a “ measurable appropriation or disbursement . . .  oc­
casioned solely by the activities complained of. This complaint 
does not.’ ’ 342 U.S. at 434.

Doremus defined taxpayer’s standing as follows:

The taxpayer’s action can meet this test, but only 
when it is a good-faith pocketbook action. It is apparent 
that the grievance which it is sought to litigate here is not 
a direct dollars-and-cents injury but is a religious dif­
ference. If appellants established the requisite special 
injury necessary to a taxpayer’s case or controversy, it 
would not matter that their dominant inducement to 
action was more religious than mercenary. It is not a 
question of motivation but o f possession of the requisite 
financial interest that is, or is threatened to be, injured 
by the unconstitutional conduct. We find no such direct 
and particular interest here. 342 U.S. at 434-35 (em­
phasis added).

In order to acquire standing as a taxpayer under Doremus, 
then, one must suffer measurable pocketbook injury as a direct 
result of a particular appropriation or disbursement; both the 
wrong done and the injury suffered, in other words, must be 
financial.

The taxpayer petitioners in the instant case allege neither 
measurable appropriation nor direct injury. Their claim is not 
that the City of Rochester spends too much money but that the 
City of Rochester does not tax all its property owners uniformly; 
their only claim against the Town of Penfield is that Penfield 
spends no money at all for services they favor. Any injury they 
may have suffered at the hands of the City of Rochester s tax 
collectors is in no way connected with —  let alone directly 
caused by —  the existence or operation of Penfield’s zoning



28

ordinance. Indeed, any causal connection between Penfield’s 
zoning practices and the tax burden upon residents of the City of 
Rochester is at best speculative and involves a number of in­
tervening contingencies over which respondents have no in­
fluence whatever —  the zoning, housing, taxing and spending 
practices of the City of Rochester and of other surrounding 
municipalities. Any injury to these taxpayers is by definition 
indirect and incapable of calculation.

The Dorernus standards of directness and measurability were 
borrowed from Massachusetts v. Mellon , supra. That case 
involved a federal taxpayer’s challenge to the Maternity Act, 
which entailed an expenditure of federal monies with the object 
of reducing maternal and infant mortality; the complaint 
alleged that the Act exceeded Congress’s legislative power. This 
Court held that the plaintiff lacked standing:

The party who invokes the [nullification] power [of a 
federal court] must be able to show not only that the 
statute is invalid but that he has sustained or is im­
mediately in danger of sustaining some direct injury as 
the result of its enforcement, and not merely that he 
suffers in some indefinite way in common with people 
generally. 262 U.S. at 488 (emphasis added).

The Court thought that the plaintiff’s interest as a federal 
taxpayer was so remote and minuscule as not to give standing, 
but this was by contrast to the position of the local taxpayer: 
“ The interest of a taxpayer of a municipality in the application 
of its monies is direct and immediate and the remedy by in­
junction to prevent their misuse is not inappropriate.’ ’ 262 U.S. 
at 486, citing Crampton v. Zabriskie, 101 U.S. 601, 609 
(1879).

The recognition given in Massachusetts v. Mellon to local 
taxpayers’ potential standing does not, however, extend to the 
taxpayer petitioners here. The direct and immediate interest 
approved in that case was of a “ taxpayer of  a municipality in the 
application of its monies.”  262 U.S. at 486. The City of



2 9

Rochester taxpayers in the present case are not “ of”  Penfield, 
and they do not attack an “ application”  of Penfield’s monies.

Flast v. Cohen, supra, involved the standing of federal 
taxpayers to challenge, under the Establishment Clause, 
provisions of the Elementary and Secondary Education Act of 
1965 that authorized grants to support education in parochial 
schools. Although it was not a local taxpayer case, Flast is 
significant: before Flast, no federal taxpayer had ever been 
recognized to have standing as such to challenge federal 
legislation, and the doctrine of Massachusetts v. Mellon, that a 
federal taxpayer’s interest in federal spending measures is too 
remote and minuscule to support standing, did not invite ex­
ceptions. Since Massachusetts v. Mellon provided important 
underpinnings for Doremus, it is worth examining the effect of 
Flast upon Doremus.

This Court in Flast expressly endorsed Doremus. The federal 
taxpayer

will be a proper party to allege the unconstitutionality 
only of’exercises of congressional power under the taxing 
and spending clause of Art. I, §8, of the Constitution. It 
will not be sufficient to allege an incidental expenditure 
of tax funds in the administration of an essentially 
regulatory statute. This requirement is consistent with 
the limitation imposed upon state-taxpayer standing in 
federal courts in Doremus v. Board o f Education . . .
392 U.S. at 102.

The subject of the taxpayer’s alleged grievance must be, then, 
under Flast as well as under Doremus, a spending measure or a 
taxing measure. Potential or speculative financial implications 
are insufficient. Flast, or at least Flast’s result, has been recently 
re-affirmed by this Court, Schlesinger v. Reservists Committee
to Stop the War, -------U .S .------- , 94 S. Ct. 2925 (1974); United
States v. Richardson, -------U.S. -------- , 94 S. Ct. 2940 (1974),
and once again taxpayers not asserting Establishment Clause 
claims were denied standing. A zoning ordinance is not the sort 
of legislation which Doremus and Flast, especially when read in



30

light of Schlesinger and Richardson, authorize a taxpayer to 
challenge.

Doremus set up a second, and cumulative, requirement for 
the taxpayer plaintiff. Not only must the measure under attack 
be a spending or taxing measure, but also the taxpayer must 
allege a good faith pocketbook injury. This Court did not dwell 
on good faith pocketbook injury in Flast, however, but spoke 
rather of the status asserted by the plaintiff and the nexus 
between not only that status and the challenged law, but also 
that status and the legal ground of the plaintiff’s case. That legal 
ground in Flast was the Establishment Clause, and that fact is 
important in distinguishing cases.

In fact, the Court began with just this premise: “ in ruling on 
standing, it is both appropriate and necessary to look to the 
substantive issues . . .  to determine whether there is a logical 
nexus between the status asserted and the claim sought to be 
adjudicated.”  392 U.S. at 102. The Court immediately said that 
“ standing requirements will vary in First Amendment religion 
cases depending upon whether the party raises an Establishment 
Clause claim or a claim under the Free Exercise Clause.”  Id. 
This conclusion was contrasted with taxpayer’s cases in par­
ticular: in Establishment Clause cases, as opposed to the 
general run of federal taxpayer cases, it does not matter whether 
the taxpayer’s financial stake is remote and minuscule because, 
in Madison’s words, “ the same authority which can force a 
citizen to contribute three pence only of his property for the 
support of any one establishment, may force him to conform to 
any other establishment in all cases whatsoever.”  Id. at 103.

There is a logical or doctrinal basis, therefore, for finding 
standing in an Establishment Clause case even in the absence of 
good faith pocketbook injury, because the Establishment Clause 
is a specific constitutional limitation imposed upon Congress’s 
taxing and spending power: it exists specifically for the benefit 
of the federal taxpayer.



3 1

Apart from the doctrinal basis for allowing this kind of 
plaintiff’s status to suffice in Establishment Clause cases, there 
is a practical basis as well. Because of the nature of the clause 
governmental breach of it does not necessarily or usually result 
in the sort of individualized injury that confers standing in other 
kinds of cases. ‘ Thus, for example, even when there is no 
coercion of school children to participate in official prayers or 
Bible-reading exercises, parents of the children have Establish­
ment Clause claims and the standing to raise them. Engel v. 
Vitale, 370 U.S. 421 (1962); School Dist. o f Abington 
Township v. Schempp, 374 U.S. 203 (1963). Flast, Engel and 
Abington reflect an understanding that the Establishment 
Clause checks in its incipiency forbidden governmental conduct 
in the area of religion. It intercepts such conduct before the Free 
Exercise Clause has come into play and before plaintiffs of the 
ordinary kind have been created. The citizenry at large and, in 
any event, taxpayers are adversely affected by any establishment 
of religion or laws respecting such an establishment even though 
their individual free exercise of religion is not affected; for 
establishment inflicts an injury in fact which is by its nature 
abroad in the land.

Even if the Doremus doctrine were altered by Flast, 
therefore, it would be altered as it related to taxpayer standing in 
Establishment Clause cases and not as it affected taxpayer 
standing in other kinds of cases. See also Schlesinger v.

1 Flast is not unique in this view of the plaintiff’s relationship to his Establishment 
Clause claim. In Engel v. Vitale, 370 U.S. 421, 430 (1962), this Court noted 
that “ The Establishment Clause, unlike the Free Exercise Clause, does not 
depend upon any showing of direct governmental compulsion and is violated by 
the enactment of laws which establish an official religion whether those laws 
operate directly to coerce nonobserving individuals or not.”  In School District of 
Abington Township v. Schempp, 374 U.S. 203, 223 (1963), this Court quoted 
Engel with approval and added: “ The distinction between the two clauses is 
apparent —  a violation of the Free Exercise Clause is predicted on coercion while 
the Establishment Clause violation need not be so attended.” See also 
Schlesinger v. Reservists Committee to Stop the War, — U.S.— , 94 S. Ct. 2925  
(1 97 4 ); and United States v. Richardson, — U.S.— , 94 S. Ct. 2940 (1974).



32

Reservists Committee to Stop the War, supra; United States v. 
Richardson, supra.

In a case like the instant one, involving a challenge to a 
zoning ordinance mounted under the Fourteenth Amendment 
and federal civil rights statutes, there are neither doctrinal nor 
practical considerations which favor departure from the 
Doremus injury test of standing. The constitutional and 
statutory provisions on which the complaint rests all, unlike the 
Establishment Clause, focus on the individual; real violation of 
them singles out and hurts specific people. No dispensation from 
the usual requirement of taxpayer standing is needed to produce 
plaintiffs who can ride herd on the government to enforce these 
laws.

Nothing in the nature of the laws relied upon here, moreover, 
would justify such a dispensation. Even if the federal taxpayer 
status recognized by the Court in Flast were not regarded as 
satisfying the “ injury in fact”  test of Association o f Data 
Processing Service Organizations, Inc. v. Camp, 397 U.S. 150 
(1970), and Barlow v. Collins, 397 U.S. 159 (1970), it did serve 
to give standing to challenge federal disbursements of tax 
moneys as violative of the Establishment Clause, because that 
clause was intended to prohibit just such spending. There is not, 
however, any logical nexus between the status asserted by 
petitioners Yinkey, Reichert, Warth, Harris, and Ortiz as 
Rochester taxpayers and their claim that the zoning ordinance 
of the Town of Penfield violates the Fourteenth Amendment 
rights of persons other than themselves.

These taxpayer petitioners are not taxpayers of the Town of 
Penfield, as Doremus requires; they are not challenging a taxing 
or spending measure, as Doremus requires; they have not 
alleged a direct and measurable pocketbook injury as Doremus 
requires.

Before this Court the taxpayer petitioners have shifted their 
ground; they now say that they are not asserting taxpayer status



33

at all. Rather, they say, their real estate taxes cause them 
financial injury that satisfies the injury in fact test of Association 
o f Data Processing Service Organizations, Inc. v. Camp. 397 
U.S. 150 11970), and Barlow v. Collins, 397 U.S. 159 (1970). 
But that is the claim in all taxpayer standing cases; taxpayer 
plaintiffs always seek standing because they have to pay taxes. It 
is, after all, the essence of taxpayer status that the taxpayers 
have to pay to the extent that their governments adopt taxing 
and spending measures. If the City of Rochester chooses to have 
tax-abated housing in excess of its “ fair share,”  whatever that 
may be, the City’s taxpayers must bear the cost of that choice. 
And if that causes them the type of injury recognized by 
Doremus, their remedy is against the City of Rochester, not 
against the rest of the world. Petitioners’ attempt to assert 
taxpayer injury without satisfying any of the Doremus taxpayer 
standing requirements must fail. None of them possesses any of 
those characteristics which turn taxpayers into plaintiffs with 
standing to sue.

C. Organizational Petitioners

Three organizations, petitioners here, also seek standing to 
challenge Penfield’s zoning ordinance and practices. The 
standing principles discussed above apply, of course, to 
organizations as well as to individuals, and the organizational 
petitioners clearly lack standing.

It is unclear precisely to what extent an organization can have 
standing merely to represent its members’ interests, to serve as a 
substitute plaintiff in their stead, when some or all of the 
members could easily institute their own action. The court below 
thought that an organization has such standing only when it can 
demonstrate “ special circumstances,”  Warth v. Seldin, supra, 
495 F.2d at 1194, 1195, and such an approach makes sense to 
us.

To be sure, this Court has stated as dictum that “ [i]t is clear 
that an organization whose members are injured may represent



34

those members in a proceeding for judicial review.”  Sierra Club 
v. Morton, supra, 405 U.S. 727, 739 (1972). But the Court 
cited only N A A C P  v. Button. 371 U.S. 415 (1963). Button 
involved an alleged statutory infringement of the right of the 
NAACP, its members, and its lawyers to associate together for 
the purpose of assisting persons who seek legal redress of their 
constitutionally guaranteed and other rights. But the right to 
associate, although certainly a right that vitally affects an 
organization, is a right peculiarly of the organization’s mem­
bers; it is, after all, their association that creates the 
organization. Accordingly, this Court held that the NAACP had 
standing to assert its own rights and the rights of its members. 
371 U.S. at 428.

Button, in turn, relied on Louisiana ex rel. Gremillion v. 
NAACP, 366 U.S. 293, 296 (1961); Bates v. City o f Little 
R ock , 361 U.S. 516, 523 & n.9 (1960); and N A A C P v. 
Alabama ex rel. Patterson, 357 U.S. 449, 458-60 (1958). Each 
of those cases, however, involved a statute requiring disclosure 
of membership lists, over a claim that such disclosure would 
result in economic or other reprisals. Requiring the members 
themselves to claim the right to withhold the membership lists 
might have rendered the standing requirement itself un­
constitutional,8 and the organization was the only party 
available to make the claim.

No such special circumstances are involved in the present 
case. None of the organizational petitioners claims rights that 
are vital, or even important, to its organizational existence. Each 
seeks merely to substitute for its members.

Further, no organizational petitioner possesses any 
characteristics other than an interest in a problem. None even 
approaches the type of organizational characteristics involved in

8 “ T o require that it [the right to withhold membership lists] be claimed by the 
members themselves would result in nullification of the right at the very moment 
of its assertion.”  N A A C P v. Alabama ex rel. Patterson, supra, 357 U.S. at 459.



35

National M otor Freight Traffic A ss ’n., Inc. v. United States, 
372 U.S. 246,247 (1963).

In any event, we think it clear that, when an organization has 
standing to represent its members, it has only such standing as 
its members would have. In other words, an organization does 
not increase or create standing by claiming it derivatively.

1. M etro-Act

Petitioner Metro-Act of Rochester, Inc. (“ Metro-Act” ) was 
an original plaintiff in the district court, quite obviously serving 
as the action’s promoter. It is a social-action organization “ with 
its main purpose being to alert ordinary citizens to problems of 
social concern”  (A. 8) by “ inquir[ing] into the reasons for the 
critical housing shortage for low and moderate income persons 
in the Rochester area”  and by “ urg[ing] action on the part of 
citizens to alleviate the general housing shortage for low and 
moderate income persons.”  (A. 8-9). Despite these interests, the 
areas of Metro-Act’s social concern are far broader than housing 
or zoning:

*

Among its stated purposes are 1) to achieve democracy 
for all irrespective of race, religion or national origin; 2) 
to encourage the Rochester community to provide better 
housing, better education, greater employment op­
portunities and to secure human and civil rights for all 
its residents. (A. 181).9

Metro-Act’s efforts in the housing area began with a 1966 
“ fact sheet”  (A. 185-86, 196-200) comparing low-income 
housing in Rochester and other upstate New York cities. Its 
initial focus was on the City of Rochester in an attempt to 
persuade the City of the need for and desirability of additional 
low-income housing within the City. (A. 186-87, 201-32). When

^Metro-Act’s presently “ active issues" are “ housing, environment, tax reform, 
media responsibility, national priorities, individual freedoms, Community Chest, 
education and membership.’ ’ (A. 183).



36

little progress was attained within the City of Rochester, Metro- 
Act shifted its attention to the suburban townships and in 
February 1969 began advocating federally assisted rent subsidy 
leasing programs. (A. 187-88, 233-44).

In April 1970 the Metropolitan Housing Committee 
published its report (A. 188-89, 245-320), which, among other 
things, recommended formation of a housing council. Metro-Act 
supported this recommendation and, when the Housing Council 
was formed in the summer of 1971, became a charter member. 
(A. 189, 322). Metro-Act initiated the Housing Council’s 
“ Political Action Committee”  (A. 189-90), which, together with 
Metro-Act, worked with the Monroe County Legislature on the 
County’s housing problems. (A. 190-91, 324-56).

Finally, Metro-Act’s focus fell on Penfield. Discussions were 
held “ [a]ll during the month of December 1971 and early 
January 1972,”  and a meeting was held in early January 1972. 
(A. 193). In response to town leaders’ request for “ a concrete 
proposal for change”  (A. 194) to Penfield’s 81-page printed 
zoning ordinance (A. 36-116), Metro-Act submitted a 4 174- 
page discussion paper (A. 357-61), which commenced with an 
express threat of litigation. (A. 358). When a scheduled January 
18, 1972, meeting had to be cancelled and the Town’s 
Supervisor suggested a February alternative date (A. 194-95), 
Metro-Act commenced this action on January 24, 1972. (A. v)

Metro-Act, then, clearly has nothing more than an “ interest 
in a problem.”  That is insufficient for standing purposes. Sierra 
Club v. Morton, supra, 405 U.S. at 739. And, with due respect 
to what respondents and we believe to be Metro-Act’s sincerity 
and dedication to the social issues it advocates, it is, we fear, 
precisely that type of “ other bona fide ‘special interest’ 
organization however small or short-lived”  that this Court 
contrasted with the Sierra Club, “ a large and long-established 
organization, with a historic commitment to the cause of 
protecting our Nation’s natural heritage from man’s



37

depredations,”  405 U.S. at 739, even as standing was denied the 
Sierra Club.

Metro-Act asserts various bases in its hope that this Court will 
award it standing. The only basis Metro-Act asserts on its own 
organizational behalf is that it, as an organization, must pay 
higher real estate taxes to the City of Rochester (A. 30), even 
though Metro-Act fails to allege that it owns any real property, 
and even though it is a non-profit organization. (A. 8, 181). In 
any event, the lack of standing of City of Rochester taxpayers to 
challenge the Town of Penfield’s zoning ordinance and practices 
is discussed above, and that discussion is totally applicable here.

Metro-Act also claims standing to represent its members, 
which, in special circumstances, it may do to the extent its 
members would have standing. No special circumstances are 
present in any of Metro-Act’s purported bases. First, Metro-Act 
claims to derive standing because some of its members are 
taxpayers of the City of Rochester.10 But, as discussed above, 
such individuals lack standing in their own right, and Metro-Act 
cannot gain more standing here. Second, Metro-Act claims to 
derive standing because some of its members are low-income 
residents of the City of Rochester who might want to move to 
Penfield. But, as discussed above, such individuals lack stand­
ing in their own right, and Metro-Act cannot gain more standing 
here.

Third, Metro-Act claims to derive standing because some of 
its members11 are residents of the Town of Penfield. Of course, 
the classes sought to be represented by the named plaintiffs did 
not include any Penfield residents (see A. 9), and the complaint

10As to this basis, Metro-Act is an unnecessary plaintiff. At least one of the 
petitioners, Robert J. Warth, who claims individual standing as a City of 
Rochester taxpayer (A. 4, 30-31) is a member, indeed president, of Metro-Act. 
(A. 180).

11 Apparently about 32 Metro-Act members, rather than the “ many” referred to by 
petitioners (Br. 13), are Penfield residents. (A. 183).



3 8

makes no mention of any Penfield resident, whether Metro-Act 
member or not, other than respondents.1" One of the affidavits, 
however, states that Metro-Act members desire to “ be spared an 
eventual repeat of ghetto confrontations and riots”  (A. 184) 
(which, of course, occurred in Rochester (A .181), not Penfield) 
and added that

Metro-Act supports quality, integrated education. 
Metro-Act members believe that it is to their own 
children’s benefit to learn early in life to come to healthy 
terms with different races and ethnic groups. (A. 184).

Metro-Act’s attempt to construct these meager and 
generalized allegations into standing in a zoning case is an 
obvious belated attempt to restructure its complaint on appeal to 
emulate the successful plaintiffs in Trafficante v. Metropolitan 
Life Ins. Co., 409 U.S. 205 (1972), decided by this Court 
several months after the instant complaint was filed. But no 
Trafficante-type claims are raised in the complaint. N o Penfield 
resident is a plaintiff here, although Metro-Act doubtless could 
have secured a Penfield plaintiff. Ann M cNabb, a Metro-Act 
member and Penfield resident (A. 615), submitted an affidavit 
for petitioners which takes in the present appendix, with 
exhibits, 309 pages (A. 615-924). But Ms. M cNabb is not a 
plaintiff and seeks no variance from Penfield’s zoning ordinance 
in order to subdivide her property.

Trafficante was an action under Section 810 of the Civil 
Rights Act of 1968, 42 U.S.C. § 3610. This Court expressly 
declined to rule on the standing questions under 42 U.S.C. § 
1982. 409 U.S. at 209 n.8; id. at 212 (W hite ,/., concurring). 
Petitioners here did not rely below and do not rely in this Court 
upon the 1968 Act. More importantly, Trafficante granted 
standing only to residents of “ the same housing unit,”  409 U.S. 
at 209, 212, that is charged with racial discrimination. It was 
this focus on a particular housing unit that gives that case

12Metro-Act made a standing claim on behalf of its Penfield members for the first 
time in the Court of Appeals. Warth v. Seldin, supra, 495 F.2d at 1193 n.7.



3 9

“ concrete adverseness,”  Baker v. Carr, 369 U.S. at 204, that 
provides the who, when, where, and why of alleged racial 
discrimination which are totally lacking here. Racial 
discrimination cases are too important to be tried “ in the air.”  
Giles v. Harris, 189 U.S. 475, 486 (1903). Metro-Act’s belated 
attempt to discover standing from within Penfield fails for lack 
of concreteness.

2. H ousing Council

The original plaintiffs moved the district court (A. 165-69) 
for an order making petitioner Housing Council in the Monroe 
County Area, Inc. (“ Housing Council” ) an additional party 
plaintiff, apparently pursuant to Fed. R. Civ. P. 19(a). No 
amendment to the complaint was proposed, however, and, had 
the motion been granted, Housing Council would have been a 
plaintiff literally asserting no claims. The motion was, of course, 
denied. (A. 951).

Housing Council is a not-for-profit corporation (A. 170) 
organized and operated

for the purpose of receiving, maintaining, or ad­
ministering one or more funds of real or personal 
property, or both, and using and applying the whole or 
any part of the income and principal thereof for the 
charitable purpose of com bating com m unity 
deterioration, eliminating racial and economic prejudice 
and discrimination in housing and lessening the burdens 
of government . . .  (A. 172).

To this end, Housing Council promotes studies of and gives 
leadership to community planning, seeks to coordinate 
governmental, public, and private housing efforts and con­
siderations, and provides or facilitates technical assistance to 
governmental, public and private housing efforts. (A. 172-73).

Housing Council is clearly a special interest group; in the 
words of its executive director, “ [bjecause of the interests of [its] 
constituent groups, Housing Council has a special interest in this



40

litigation . . . (A. 175). But this, of course, is insufficient to
confer standing. Sierra Club v. M orton, supra.

Other than its special interest in housing, Housing Council 
does not claim standing in its own right. Rather, it seeks to 
derive standing from its members. First, Metro-Act is a Housing 
Council member (A. 178), but Housing Council can have no 
greater standing than does Metro-Act. Second, some of Housing 
Council’s members are governmental agencies (A. 174-75, 177- 
79), but there is no allegation of how any of them have been or 
might be injured, except, of course, for their own special in­
terests in the area. Third, some of Housing Council’s member 
organizations are themselves made up of low and moderate 
income persons (A. 175), although there is no indication as to 
their places of residence. But, as discussed above, low and 
moderate income persons lack standing in their own right, and 
Housing Council cannot gain increased standing by its double 
derivative claim.

Last, some of Housing Council’s members have been “ or 
hope to be”  involved in the development and construction of low 
and moderate income housing. (A. 174). Except for one, there is 
no indication of where the prospective sites are located, whether 
the sites are even in Penfield, whether applications for variances 
or building permits have been made and, if so, the result. Such 
recitations would not be formalistic requirements; they would 
supply the crucial “ concrete adverseness,”  Baker v. Carr, supra, 
369 U.S. at 204, that is lacking in this action by providing the 
where, when and why of respondents’ alleged “ discriminations.”  
More than perhaps most fields, home construction does not take 
place “ in the air,”  Giles v. Harris, supra, 189 U.S. at 486, and 
zoning considerations are concerned with specific parcels and 
specific proposed projects.

One Housing Council member, however, Penfield Better 
Homes Corporation, is identified as having actually attempted 
to secure approvals for moderate income housing within Pen-



4 1

field. (A. 174). But Penfield Better Homes Corporation is a 
nonprofit corporation (A. 616) and obviously cannot have the 
type of economic injury recognized in, for example, Data 
Processing and Barlow v. Collins.

Further, Penfield Better Homes Corporation’s “ proposal”  
simply lacks the requisite degree of specificity necessary to 
meaningful consideration in a zoning case. The proposal (A. 
849-59) speaks only in the most general terms. To be sure, a 
specific site is mentioned as the one “ we have in mind”  (A. 852), 
but there is no indication as to its ownership. Although the 
proposal names a builder, general contractor, and architect (A. 
853), there is no indication that planning had proceeded beyond 
a very general site plan (A. 854). Indeed, although the proposal 
hoped for Federal Housing Administration assistance (A. 630, 
853), there is no indication that application to the FHA was ever 
made. An affidavit refers to “ comprehensive studies”  (A. 630), 
but these involved only a soil analysis (A. 860-63), a traffic 
count at respondents’ request (A. 864-65), and, incredibly, a 
legal opinion (A. 866-80). These preliminary thoughts, even 
when added'together, are far less than the concrete plans and 
specific preparedness of the developers, builders, and land- 
owners who have been granted standing by the lower courts in 
other cases.13

These cases, discussed above at pp. 20-25, include United Farmworkers o f Fla. 
Housing Project, Inc. v. City of Delray Beach, 493 F.2d 799 (5th Cir. 1974); 
Morales v. Haines, 486 F.2d 880 (7th Cir. 1973); Park View Heights Corp. v. 
City o f Black Jack, 467 F.2d 1208 (8th Cir. 1 972); Crow v. Brown, 457 F.2d 
788 (5th Cir. 1 972); Kennedy Park Homes A ss ’n., Inc. v. City o f Lackawanna, 
436 F.2d 108 (2d Cir. 1970), cert, denied, 401 U.S. 1010 (1 97 1 ); Dailey v. 
City o f Lawton, 425 F.2d 1037 (10th Cir. 1970); Southern Alameda Spanish 
Speaking Org. v. City o f Union City, 424 F.2d 291 (9th Cir. 1970); Ranjel v. 
City o f Lansing, 417  F .2d 321 (6th Cir. 1969),  cert, denied, 397 U.S. 980, 
rehearing denied, 397 U.S. 1059 (1970); Sisters of Providence v. City of 
Evanston, 335 F. Supp. 396 (N .D . 111. 1971).



42

In any event, the Penfield Planning Board held two public 
hearings on the “ proposal,” in September 1969 and November 
1969. (A. 629-31). Thereafter, the Planning Board denied the 
request because it felt that townhouses “ would constitute an 
inappropriate use of this land and would not be consonant with 
existing character of the neighborhood,”  “ would create traffic 
problems within the area,”  and “ would cause serious erosion 
problems during and after construction.” 14 (A. 881-82). 
Thereafter, Penfield Better Homes Corporation asked the Town 
Board for a further public hearing,15 which, because the 
Planning Board had already held two public hearings, was 
denied in January 1970.16 (A. 883-84). Thereafter, the record 
does not disclose any steps taken by Penfield Better Homes 
Corporation. It may have had further administrative remedies, 
and it certainly had the right to institute a special proceeding in 
state court, N .Y. Civ. Prac. Law & Rules Art. 78, within four 
months, N .Y. Civ. Prac. Law & Rules § 217. But that time has 
long since expired. If Penfield Better Homes Corporation 
cannot litigate its own claims, surely Housing Council cannot 
derive derivative standing to sue in its behalf.

3. H om e Builders

Petitioner Rochester Home Builders Association, Inc. 
(“ Home Builders” ) moved the district court for an order, 
pursuant to Fed. R. Civ. P. 24, allowing it to intervene as a 
party plaintiff. (A. 134-38). Its proposed intervenor’s complaint

^Petitioners make no showing of what steps, if any, they would take to avoid the 
problems raised in the soil study. (A. 860-63).

15It does not appear from the record that Penfield Better Homes Corporation ever 
actually requested rezoning of the desired site.

i^Both the Planning Board and the Town Board specifically stated that they 
recognized the need for moderate income houses in Penfield. (A. 882, 884).



43

(A. 144-64) is similar to the complaint of the original plaintiffs, 
The motion was denied. (A. 9511.17

Home Builders is a nonprofit trade association (A. 145) 
whose members are active in the home construction industry in 
the Rochester metropolitan area (A. 146). Its members have 
built either “ substantially all”  (A. 142-43) or 80%  (A. 147) of 
the private housing units constructed in the Town of Penfield 
during the last 15 years. Approximately eleven of its members 
have been active in the home construction industry in Penfield. 
(A. 146). Home Builders makes no claim that it has any 
statutory or other special role in Penfield’s housing industry or 
that it has ever played any role on its members’ behalf, whether 
before zoning boards, before planning boards, or in the courts. 
Compare National M otor Freight Traffic A ss’n., Inc. v. United 
States, supra, 372 U.S. at 247.

Home Builders claims no organizational standing in its own 
right; rather, it claims only derivative standing from its 
members, who, it alleges, have been injured because they have 
been prevented from constructing and selling or renting low and 
moderate income housing in Penfield. (A. 153, 156). But there 
is absolutely no specificity —  there is no indication of what 
contractors are prepared to build what projects on what sites or 
what efforts have been taken to secure Town approval. Even the 
low-income residents of the City of Rochester at least allege that 
they “ hope”  or “ desire’ ’ to move to Penfield. But the Home 
Builders do not even assert that any of its members even desires, 
let alone is prepared, to construct low-income housing in 
Penfield. This is truly “ a mere declaration in the air,”  Giles v.

17The district court denied the motion for intervention both because of Home 
Builders’ lack of standing and in the exercise of its discretion, pursuant to Fed. 
R. Civ. P. 24, because intervention would unduly delay or prejudice the ad­
judication of the rights of the original parties. (A. 951). The court of appeals did 
not reach the Rule 24 issue. Warth v. Seldin, supra. 495 F.2d at 1195. We do 
not read petitioners’ brief as arguing that Home Builders should be allowed to 
intervene even if all the other petitioners lack standing.



44

Harris, supra, 189 U.S. at 486, coming nowhere near the 
“ concrete adverseness,” Baker v. Carr, supra, 369 U.S. at 204, 
required.1 8

Reference is made in the record to a few specific projects, in 
various stages of proposal, although there is no indication that 
any of them involved Home Builders members. Each is either 
moot or unripe, and none gives standing to Home Builders. 
Joseph Audino submitted a Planned Unit Development 
(“ PU D ” ) complex proposal (A. 623-24), as to which, after 
repeated consideration and various amendments (A. 624-28, 
752-839), an agreeable compromise was reached (A. 627-28, 
840). O ’Brien Homes, Inc. submitted an apartment proposal 
(A. 633-36, 885-96) which, after modification (A. 636, 902-07), 
was on the Planning Board’s table (A. 906) and had been 
referred to the Monroe County Planning Council for its 
recommendation. (A. 636). The Standco PUD complex 
proposal, which was approved for rezoning (A. 636), was 
awaiting a further public hearing for final approval (A. 637, 
920). The Rock Take PUD complex proposal was approved for 
rezoning (A. 636), but the developer apparently abandoned the 
proposal as economically unfeasible. (A. 637). An application 
by Zuric Development Corporation to rezone land to allow for 
smaller single-family houses in the $25,000 —  $30,000 price 
range (hardly low-moderate income housing) was denied (A. 
639-39, 921-23), “ notwithstanding the Board’s interest in the 
concept but upon the grounds that sewer capacity is unavailable 
at present.”  (A. 922). Last, an application by Angelo 
Castronova for rezoning for a proposed apartment complex (A. 
639, 924) was viewed with disfavor “ because of the 
unavailability of sanitary sewer capacity.”  (A. 924).

These sketchy outlines of various shifting proposals in an area 
that demands concrete specifics for meaningful evaluation

1 ̂ Compare the specific allegations by specific builders in cases where builders have 
been granted standing, discussed at pp. 20-25 above.



45

cannot possible serve to give Home Builders standing to launch 
a broad-scale attack on an ordinance and 15 years of practice.

CONCLUSION

Although the merits of the case are not now before the Court, 
we urge the Court to keep in mind that this is a zoning case. As 
this Court has noted before, zoning in our federal system is a 
subject uniquely of local concern and resolution. E.g., Village o f 
Belle Terre v. Boraas, 416 U.S. 1 (1974); Village o f Euclid v. 
Ambler Realty Co., 272 U.S. 365 (1926). The Town of Pen- 
field’s zoning ordinance, which is “ fairly typical for a suburban 
community,”  Warth v. Seldin, supra, 495 F.2d at 1189, is no 
doubt imperfect, but the “ problems of government are practical 
ones and may justify, if they do not require, rough ac­
comodations —  illogical, it may be, and unscientific.”  
Metropolis Theatre Co. v. City o f Chicago, 228 U.S. 61, 69-70 
(1913); Dandridge v. Williams, 397 U.S. 471, 485 (1970). In 
such a complex area as zoning, no perfect alternatives exist; and 
federal judges are less well situated than local legislators and 
administrators to resolve the conflicting problems of municipal 
land use “ for reason that they lack both the expertise and the 
familiarity with local problems so necessary to the making of 
wise decisions with respect to”  these problems. Cf. San Antonio 
Independent School District v. Rodriguez, 411 U.S. 1, 41, 
rehearing denied, 411 U.S. 959 (1973).

Of course the language used by this Court in Dandrige and 
Rodriguez is quoted from a different constitutional context —  
not in reference to standing questions under Article III but to 
questions of the appropriate form of review under the Four­
teenth Amendment. Because of the intractable problems of 
many of the areas committed to local governance, federal courts 
will not ordinarily scrutinize local solutions strictly in Equal 
Protection cases but will give them the benefit of the con­
stitutional doubt. This is so in the area of local zoning. Village of 
Euclid v. Ambler Realty Co., supra; Village o f Belle Terre v. 
Boraas, supra.



4 6

In itself this is another question, not presently before the 
Court. But the wisdom which underlies this Court’s usual form 
of Fourteenth Amendment review is relevant to the question of 
standing and in particular inheres in the test of Baker v. Carr, 
supra. Whether the presumption is in favor of or against con­
stitutionality once a trial has been reached, the courts require 
plaintiffs who, because of their personal stake and their concrete 
adverseness with defendants, can assure a sharp presentation of 
the issues which will illuminate difficult constitutional questions 
in terms of the practical operation of the legislation under at­
tack.

Where, as here, the legislation is complicated and highly 
local, and the Fourteenth Amendment challenge is broadside, 
effective constitutional litigation demands plaintiffs with direct 
and personal grievances in concrete opposition with the 
defendants over identified actions that really occurred. This is 
not such a case.

Respectfully submitted,

James M . Hartman 
Douglas S. Gates 
J. William Ernstrom 
Luther C. Nadler

Harris, Beach and Wilcox 
Two State Street 
Rochester, New York 14614 
Telephone: 716-232-4440

Attorneys for Respondents