Kennedy Park Homes Association, Inc. v. City of Lackawanna, NY

    IN  t h e

Suprem e Court of the U n ited  States

October Term, 1970

No.

KENNEDY PARK HOMES ASSOCIATION INCOR­
PORATED, COLORED PEOPLE’S CIVIC AND POLI­
TICAL ORGANIZATION, INC., JAMES M. THOMAS, 
SAMUEL MARTIN, THE DIOCESE OP BUFFALO, 
N. Y.,

Respondents,
UNITED STATES OF AMERICA,

I ntervenor-Respondent, 
vs.

CITY OF LACKAWANNA, NEW YORK, et al,,
Petitioner.

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

FOR THE SECOND CIRCUIT

CONDON, KLOCKE, ANGE 
& GERVASE,

Attorneys for Petitioner,
1440 Rand Building,
Buffalo, New YTork 14203.

J ohn W. Condon, J r. and 
Grace Marie A nge, 

of Counsel.

BATAVIA'TIMES.  LAW PRINTERS.  
BATAVIA.  N. Y.



TNDEX.

PAGE
Opinion Below...............................................................  2
Jurisdiction ...................................................................  2
Questions Presented......................................................  2
Statutory Provisions Involved......................................  2
Statement of the C ase ................................................... 3
Reasons for Granting the Writ ................................ . 5

1. The case involves a question of novelty and is of
importance to the public....................'................. 0

2. The issue involved is important to the public
interest of the citizens of Lackawanna ............. 10

3. The fiscal importance of this issue to the City of
Lackawanna is immense ................................   11

Conclusion....... ..............................................................  13
Appendix..................................................................   14

§ 1983. Civil Action for Deprivation of R ights.......  14
§ 3601. Declaration of Policy..................................  14
§ 3602. Definitions..................................................... 14
§3604. Discrimination in the Sale or Rental of

Housing........................................................  15
Decision of the United States Court of Appeals for the 

Second C ircuit.........................................   17
Decision and Order of the United States District Court 

for the Western District of New Y o rk ...................   31



TT.

PAGE

A lphabetical L ist oe Cases Cited.

Federal Trade Commission v. Jantzen Inc., 386 US 228 11 
Layne & Bowler Corp. v. Western Well Works, 261 US

387 ............................................................... ..............  6
Louisiana v. United States, 308 US 145........................ 9
Norwalk Core v. Norwalk Be development Agency, 395 

F. 2nd 920 .................................. .............. . .. .......  9
Patterson v. Lamb, 329 US 539 .................................. . 11
Rice v. Sioux City Cemetery, 349 US 7 0 .......................  6



IN  T H E

Suprem e Court of the U n ited  States

October Term, 1970

No.

KENNEDY PARK HOMES ASSOCIATION INCOR­
PORATED, COLORED PEOPLE’S CIVIC AND PO­
LITICAL ORGANIZATION, INC., JAMES M. 
THOMAS, SAMUEL MARTIN, THE DIOCESE OF 
BUFFALO, N. Y„

Respondents,
UNITED STATES OF AMERICA,

I n ter 1 ■ enn r- R espondent,
vs.

CITY OF LACKAWANNA, NEW YORK, et al,
Petitioner.

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

FOR THE SECOND CIRCUIT

The Petitioner, City of Lackawanna, et al., respectfully 
prays that a Writ of Certiorari issue to review the judg­
ment and opinion of the United States Court of Appeals 
for the Second Circuit entered in this proceeding on De­
cember 7,1970.



2

Opinion Below

The opinion of the United States Court of Appeals for 
the Second Circuit and the United States District Conrt for 
hereto. Neither opinion has yet been reported, 
the Western District of New York appear in the Appendix

Jurisdiction

The judgment of the Court of Appeals for the Second. 
Circuit was entered December 7, 1970, and this Petition 
for Certiorari was filed within ninety (90) days of that 
date. This Court’s jurisdiction is invoked under 28 USC 
1254 (1).

Questions Presented

1. Did the action of the Defendants violate any statu­
tory or Constitutional right of the Plaintiffs.

2. To what extent can a District Court involve itself 
in the administration of a municipal government to “elim­
inate the discriminatory effects of the past as well as 
bar discrimination in the future”, once the Court has 
found denial of equal protection and the rights guaranteed 
by Title VIII of the Civil Rights Act of 1968.

Statutory Provisions Involved

Equal Protection and Due Process Clause of the 14th 
Amendment to the Federal Constitution, the Civil Rights 
Act, 42 USC 1983, Fair Housing Act of 1968, 42 USC 3601, 
et seq., pertinent text of these statutes are set forth in the 
Appendix.



Statement of the Case

The Petitioner, City of Lackawanna, is located in Erie 
County in the State of New York, ft has a population of 
approximately 28,000 persons.

The City is divided into three wards. The first ward is 
located in the western portion of the City, over % of the 
land area in this ward is occupied by the Bethlehem Steel 
Plant, it abuts on Lake Erie on the West and extends be­
yond the City’s boundaries both North and South. Ap­
proximately 7,500 persons live in this ward, approximately 
% of these persons are Black. About 9,000 persons inhabit 
the second ward and 12,000 persons live in the third ward 
which is the most easterly ward. All of the Blacks reside 
in the first ward of the City, with the exception of a few 
Black families living in the third ward.

The City is completely landlocked with no room for ex­
pansion in any direction.

There is very limited amount of vacant land left in the 
City, most of which is located in the third ward and most 
of the usable vacant land is owned by the Respondent, 
Diocese of Buffalo. The Diocese committed itself to sell 
•’0 acres of its vacant land to Kennedy Park Homes, which 
is a non-profit organization formed by the Colored People’s 
Civic and Political Organization, for the purpose of con­
structing homes to be sold to its members who are Black.

The City of Lackwanna for the past 10 years has suffered 
from a critical deficient sewage system. All of the sewer 
lines in the second and third wards, which contain about 
% of the residual use of the City, empty into but one 
sewer line leading to the sewage treatment plant. This 
line lacks the capacity to handle all of the sewage and as a 
result, raw sewage is pumped into an open creek which 
runs across the third ward



4

The Respondent, Kennedy Park, planned to construct 
their subdivision in the heart of the area which has suffered 
the most sewer problems, the Martin Road area. Three 
groups of residences in this area have sewers which, dis­
charge into a 10 inch pipe which in turn empties into a 
15 inch pipe which is unable to accommodate the flow. This 
15 inch pipe unloads into the Martin Road 18' inch pipe 
which in turn empties into a 15 inch pipe. The result of 
this is that raw sewage, including fecal matter, backs up 
into the basement of homes in the Martin Road area. In 
an effort to head off exacerbating this problem, the City 
government passed an ordinance prohibiting the approval 
of any new subdivisions until the sewer problem had been 
resolved. The City took no action prohibiting the con­
struction of new homes on subdivisions which had pre­
viously been approved.

The City had for years been planning a park and recrea­
tional facility. The only area left in the City where such 
a park could be located was the vacant land situated in 
the third ward. If this land was consumed by the construc­
tion of buildings, the City’s opportunity for a park would 
be foreclosed forever. Therefore, at the same time it pass­
ed the ordinance prohibiting the construction of any new 
subdivisions, it zoned all the vacant land for parks and 
recreational purposes.

There is no real controversy between the parties as to 
the fact that the sewers in the Martin Road area, the 
location of the proposed Kennedy Park Homes Subdivi­
sion, are in a deplorable condition and have been in such a 
condition long before the existence of the Respondent, 
Kennedy Park Homes. Nor did the Court below make a 
contrary finding of fact regarding the condition of the 
sewers in this area.



The District Court found that the Petitioner’s conduct 
denied the Respondents equal protection of the Laws and 
the Constitution of the United States and the rights guaran­
teed by Title Vlll of the Civil Rights Act of 1968.

As its remedy the Court made the following Order:
L That, within ten days after Plaintiffs deliver the 

Sanitary 5 form with accompanying documents to the City 
of Lackawanna, it be executed by an appropriate official and 
forwarded to the Erie County Department of Health for 
future action.

-■ That, if the Sanitary 5 forms is disapproved by the 
Erie County Department of Health, defendants shall imme­
diately take whatever action is necessary to provide ade­
quate sewage service to the K. P. H. A. subdivision.

3. That defendants be enjoined from initiating steps to 
condemn appropriate or otherwise acquire the Kennedy 
Park Subdivision site for use as park and recreation.

4. That defendants be enjoined from using any of the 
City’s municipal powers regarding land use to prevent or 
interfere with the construe!ion of Kennedy Park Subdi­
vision.

5. That defendants affirmatively take whatever steps 
are necessary to allow the Kennedy Park Subdivision to 
begin construction.

6. That defendants be enjoined from issuing building 
permits for any construction in the second and third wards 
which will contribute additional sanitary sewage to the 
municipal system until Kennedy Park Subdivision has 
been granted permission to tap into the sewer system by 
the appropriate authority.

5



6

7. That defendants report to the Court, the United 
States and the private plaintiffs what steps the City has 
taken to allow the connection of Kennedy Park Subdivision 
into the municipal sewer system; what problems they have 
encountered; and what they are doing about these problems. 
That, if appropriate and necessary, the court shall set a 
timetable for such reports.

8. That this court retain jurisdiction over this matter 
until Kennedy Park Homes Subdivision is completed.

9. That this court will defer consideration of the ques­
tion of damage until a later date, to be fixed by order of 
the court.

Reasons for Granting the Writ
1. T he case involves a question o f novelty and is o f  

im portance to the public.

This Court has held that it will grant Certiorari in case-s 
involving principals, the settlement of which, is important 
to the public as distinguished from that of the parties: 
Layne <& Bowler Corp. v. Western Well Works, 261 ITS 
387, Rice v. Sioux City Cemetery, 349 US 70.

The propriety of a District Court’s virtually taking over 
and running a City on its finding that there has been a 
violation of Title VIII is a question which will arise every 
time a municipality is prosecuted under this Title.

The Petitioner could find no instance where a District 
Court involved itself so extensively in the administration 
of a City. The Court’s Order is so sweeping as to in 
effect require the District Court Judge to administer the 
City’s affairs rather than its elected officials.

The Petitioner below asked, that the District Court’s 
Order be modified. The Court of Appeals held that the



7

City should apply to the trial judge for such action as 
may be warranted under the premises. This means that 
the ultimate judgment as to what is to be done or not 
done in the City is left to a District Judge who is not a 
resident of the City, is not aware of the citizens’ desires 
and is not answerable to the electorate. An example of 
such a situation is the Court’s directive number 6, which 
prohibits the issuing of building permits in the second 
and third wards of the City, until Kennedy Park is granted 
permission to tap into the Lackawanna Sewer System by 
the appropriate authority. Because of the admittedly 
poor state of the sewers and sewer system in Lackawanna, 
Kennedy Park Homes may not be granted permission by 
the appropriate authority (which is not the City) for 
years. There can, therefore, he no building in over % 
of the City without the sanction of the District Court,

The Court then is the final arbitrator as to what does 
or does not get built in Lackawanna. The Court would 
then, for example, decide if there should be an addition to 
a municipal building, whether a new school can be built, 
whether the hospital located in the third ward can expand 
or he rejuvenated, whether a private business building can 
be expanded or new businesses built. All of these decisions 
affect the health, welfare, administration, growth and 
economy of the City. None of them would be made by 
the City’s elected officials.

Directive No. 5 orders that the City affirmatively take 
whatever steps are necessary to allow Kennedy Park to 
begin construction. The County Health Department has 
already stated that- it will not approve any subdivision 
unless the governmental body has a secondary sewage 
treatment plant (Lackawanna does not as yet have such a 
facility). In any event, the secondary plant is only one of 
the problems to be dealt with. There is the equally difficult



problem of separating the storm water from the sanitary 
sewers’ flow. The respondents argued that the City shonld 
require the disconnecting of downspouts and footing 
drainings from sanitary sewers (a problem common to 
most communities in Erie County). Their own witness 
claimed that the cost of disconnecting downspouts would 
be from $10 to $100 depending on the circumstance of each 
house. The footing drains are buried and run laterally 
from the house to the sewer in the street. It is difficult', 
and in some cases impossible to tell whether the lateral 
sewer is attached to the storm or sanitary sewer pipe. 
In some of the older areas of the City there are no storm 
sewers.

If such a program is to be adopted a decision must be 
made as to who pays for the work: the City (as suggested 
in one of the reports introduced in evidence by the Re­
spondents [Hansen and Greely Report]), or each home 
owner. If it is the City, where does it get the money; 
increase taxes, float a. bond issue? If it is the home owners, 
what is done with those who cannot afford such repairs 
or refuse to make them?

The County will not approve any subdivisions unless a 
secondary treatment plant is built (the cost of which runs 
into the millions), which should be done first, the dis­
connecting of the downspouts and footing drains or the 
construction of a secondary treatment plant; should they 
be undertaken at the same time and again where does the 
City obtain the money? If there is a disagreement as to 
the means and priority in resolving these problems it is 
the District Court not the City officials that will decide 
the matter.

Directive No. 4 prohibits the City from using any of its 
land use power to “ prevent or interfere” with the con­



9

struction of Kennedy Park Homes. Kennedy Park can, 
therefore, ignore City building codes, zoning ordinances 
or municipal regulations regarding the construction of their 
homes unless the Court modified its Order on petition of 
the City, so here again the Court acts as the arbitrator of 
City regulations.

In its opinion the Court cited as authority for its action 
Louisiana vs. United States, 308 US 145 (1965). That 
case involved voting rights. Louisiana required an “ inter­
pretation test” which required that an applicant for regis­
tration be able to give a reasonable interpretation of any 
clause in the Louisiana Constitution or the Constitution of 
the United States. The District Court found that Louisi­
ana’s interpretation test, as written and applied, was part 
of a successful plan to deprive Louisiana Negroes of their 
right to vote. The Court in its decision ordered reports 
made to it every month concerning the registration of 
voters in 21 parishes and retained jurisdiction of the entire 
case to hear evidence of discrimination in other parishes 
and to enter an order as justice from time to time might 
require. The decree in this case goes substantially beyond 
the decree in the Louisiana case. In Louisiana the1 Court’s 
supervision was only over the registration of voters. It 
kept jurisdiction only to “ hear evidence of discrimination 
in other parishes” .

In the instant case, the Court chooses to act as an over­
seer of the entire administration of the City and it is the 
City who must apply to the Court regarding matters effect­
ing every facet of its existence, not an individual or group 
of individuals claiming that particular acts of the City were 
discriminatory towards them. The Second Circuit itself, 
in Norwalk Core v. Norwalk, Redevelopment Agency, 395 
P. 2nd 920 (1968), which involved the question of proper 
relocation of Blacks as a result of urban renewal, held that



10

the most appropriate form of judicial relief is proof that 
White and Blacks are being treated equally and that affir­
mative relief would be much less appropriate “ since it 
would involve the Court in areas foreign to its experience 
and competence” . The Court in this case has taken on 
just such an area and the question presented is its authority 
to take over the functions of a City, so it may eliminate 
‘ ‘ discriminatory effects ’ ’ past and future.

2. T he issue involved is im portant to  the public interest 
of th e  citizens o f  Lackawanna.

The issues involved here affect not only the parties in­
volved in the controversy, but directly and indirectly all 
of the citizens of the City. In some specific instances cer­
tain individuals are deprived of the enjoyment and use of 
their property although they were not made parties to this 
action.

Individuals who had purchased property and expended 
monies in order to build a, home in any previously approv­
ed subdivision located in the % of the City in which build­
ing is now prohibited, are estopped from building a home 
even though they were not made a party to this action. 
The same is true of owners and developers of previously 
approved subdivisions who are now unable to sell their 
lots in which they invested money. Costs and expenses 
were assumed by these people on the reasonable belief that 
they would be able to do what the municipality had said 
they could do, i.e., build homes on lots which had been 
approved by the City. These individuals are, therefore, 
deprived of their investment and significant property rights 
as the result of an action to which they were not parties.

There was never any claim by the Respondents or find­
ing in any Court that Blacks were refused building per­
mits. As a result the Court order to ‘‘ eliminate diserimina-



11

tory effects” found by it to be practiced on one group of 
Blacks lias deprived every other citizen Black and White 
of rights enjoyed by them.

All of the citizens of the City are deprived of the use of 
a middle school which, was to be built and to service the 
entire city. All of the citizens are deprived of the use of 
any additions or renovations which may be done on the 
hospital. All of the citizens are deprived of the use of 
additions to or new construction of any of the municipal 
buildings.

in. addition to depriving the citizens of Lackawanna of 
services they might have otherwise enjoyed, the order in 
effect imposes an additional tax burden, to obtain the 
monies necessary to pay for whatever program the Court 
orders the City to embrace in order to “ affirmatively allow 
Kennedy Park Subdivision to begin construction”, or to 

. correct the City’s sewers.

The Court’s order affects such large numbers of people, 
not only in Lackawanna but in every City in the United 
States which might be prosecuted under these statutes, 
therefore, this Court should grant Certiorari, Patterson v. 
Lamp, 329 US 539 (194?/), Federal Trade Commission v. 
Jan pen Inc., 386 US 228 (1967).

3. T he fiscal im portance o f  th is issue to  the City o f Lacka­
wanna is im m ense.

Directive number 2 of the Court requires the Petitioner 
to take immediate action to provide adequate sewage ser­
vice to Kennedy Park Homes, if the County Health Depart­
ment disapproves Kennedy Park Homes’ application to 
hook up to the City’s sewer system. The Erie County 
Health Department has already stated that it would not 
approve sewer extensions for any municipalities that have



12

only primary treatment plants. Lackawanna, like most 
municipalities in Erie County, does not have a secondary 
treatment plant. Construction of such a plant costs 
several million dollars. The Health Department has also 
ruled that storm water must be kept out of sanitary sewers. 
The correction of this problem is also an extremely costly 
one.

The City has been advised by an independent sewer con­
sultant firm that the sewer problem in the area where 
Kennedy Park Homes plant to build its subdivision was a 
complex one which will necessitate a great deal of time to 
resolve. One of the reasons for tills dilemma is that 
there are no plans in existence which set forth the whole 
sewer system as it is presently in the ground, and that 
working out the necessary details is going to require a 
great deal of time, work and money. There was no evi­
dence produced by the Respondents that the sewer con­
sultants’ assessment of the problem was incorrect or that 
there was a quicker or cheaper way to resolve: the problem. 
The City cannot substitute the Conrt order for a magic 
wand which will make these problems disappear because 
the Court has ordered that they be gone.

The City has already indebted itself in the amount of 
8 million dollars for the construction and correction of its 
sewers and is committed to spend an additional 2.5 million 
dollars in a project presently underway to sever its sewer 
connections in the northeastern part of the City from the 
City of Buffalo sewer system.

The oth directive of the Court is that the City affirmative­
ly take whatever steps are necessary to allow Kennedy 
Park Homes to begin construction. What is necessary and 
what affirmative steps the City must take may require the 
City to spend vast sums and deplete its revenue in an



13

unknown quantity for the benefit of only a small number 
of its citizens. To require the City to expend great amounts 
of revenue in a manner and at a place set by the District 
Court will of necessity result in the City taking on a greater 
indebtedness, the curtailment of other services, and even 
conceivably the bankruptcy of the City. As a result of 
the vast amounts of money involved, which could very well 
mean the financial survival of the City, Certiorari should 
be granted.

Conclusion

For these reasons a Writ of Certiorari should issue to 
review the judgment and opinion of the Second Circuit.

Respectfully submi tied,

CONDON, KLOCKE, A NOE 
& OERVASE,

Attorneys for Petitioner,
1440 Rand Building,
Buffalo, New York 14203.

J o h n  W. C ondon, J r ., an d  
Grace Marie A nge, 

of Counsel.

Dated: January . . .  ., 1971. Buffalo, New York.



14

APPENDIX

§ 1983. Civil Action for Deprivation of Rights

Every person who, under color of any statute, ordinance, 
regulation, custom, or usage, of any State or Territory, 
subjects, or causes to be subjected, any citizen of the United 
States or other person within the jurisdiction thereof to 
the deprivation of any rights, privileges, or immunities 
secured by the Constitution and laws, shall be liable to 
the party injured in an action at law, suit in equity, or 
other proper proceeding for redress. R.S. § 1979.

* * *

§ 3601. Declaration of Policy

It jls the policy of the United States to provide, within 
constitutional limitations, for fair housing throughout the 
United States.

Pub. L. 90—284, Title VIII, §801, Apr. 11, 1968, 82 Stat. 81.
#  *  *

§ 3602. Definitions
As used in this subchapter—

(a.) “ Secretary” means the Secretary of Housing arid 
Urban Development.

(b) “ Dwelling” means any building, structure, or por­
tion thereof which is occupied as, or designed or intended 
for occupancy as, a residence by one or more families, and 
any vacant land which is offered for sale or lease for the 
construction or location thereon of any such building, 
structure, or portion thereof.



(e) “Family” includes a single individual.
(d) “ Person” includes one or more individuals, cor­

porations, partnerships, associations, labor organizations, 
legal representatives, mutual companies, joint-stock com­
panies trusts, unincorporated organizations, trustees, trus­
tees in bankruptcy, receivers, and fiduciaries.

(e) “ To rent” includes to lease, to sublease, to let and 
otherwise to grant for a consideration the right to occupy 
premises not owned by the occupant.

(f) “ Discriminatory housing practice” means an act 
that is unlawful under section 3604, 3605, or 3606 of this 
title.

(g) “ State” means any of the several States, the Dis­
trict of Columbia, the Commonwealth of Puerto Rico, or 
any of the territories and possessions of the United States.
Pub. L. 90—284, Title VIII, § 802, Apr. 11, 1968, 82 Stat. 81.

114 U. S. C. A.—15
1968 P. P.

§ 3604. Discrimination in the Sale or Rental of Housing

As made applicable by section 3603 of this title and 
except as exempted by sections 3603(b) and 3607 of this 
title, it shall be unlawful—

(a) To refuse to sell or rent after the making of a 
bona fide offer, or to refuse to negotiate for the sale or 
rental of, or otherwise make unavailable or deny, a dwell­
ing to any person because of race, color, religion, or 
national origin.

(b) To discriminate against any person in the terms, 
conditions, or privileges of sale or rental of a dwelling,



1G

or in the provision of services or facilities in connection 
therewith, because of race, color, religion, or national 
origin.

(c) To make, print, or publish, or cause to be made, 
printed, or published any notice, statement, or advertise­
ment, with respect to the sale or rental of a dwelling that 
indicates any preference, limitation, or discrimination 
based on race, color, religion, or national origin, or an in­
tention to make any such preference, limitation, or dis­
crimination.

(d) To represent to any person because of race, color, 
religion, or national origin that any dwelling is not avail­
able for inspection, sale, or rental when such dwelling is in 
fact so available.

(e) For profit, to induce or attempt to induce any per­
son to sell or rent any dwelling by representations regard­
ing the entry or prospective entry into the neighborhood 
of a person or persons of a particular race, color, religion, 
or national origin.
Pnb. L. 90—284, Title VIII, § 804, Apr. 11, 1968, 82 Stat. 83.



17

Decision of the United States Court of Appeals for the 
Second Circuit

UNITED STATES COURT OF APPEALS
F ob the  Second Cikcttit

No. 359—September Term, 1970.
(Argued October 14, 1970 Decided December 7, 1970.) 

Docket No. 35320

KENNEDY PARK HOMES ASSOCIATION, INC.; 
COLORED PEOPLE’S CIVIC AND POLITICAL 
ORGANIZATION, INC.; JAMES M. THOMAS; 
SAMUEL MARTIN; THE DIOCESE OF BUFFALO, 
NEW YORK,

Plaintiffs-Appellees,
UNITED STATES OF AMERICA,

Plaintiff-Intervenor-Appellee,

v.
CITY OF LACKAWANNA, NEW YORK; MARK L. 

BALEN, as Mayor; MICHAEL T. DePASQUALE, 
MELVIN D. WODZINSKI, FRANK AMROZOWICZ, 
HOWARD L. PIOTROWSKI, and THADEUS SRODA, 
as constituting the City Council; FRANK D. CIPRI­
ANI, as Director of Development; EDWARD J. KIT- 
WICK, as Chief Engineer,

Defendants-Appellants.

Before; Clark, Associate Justice,*
Lombard, Chief Judge, and Kaufman, Circuit Judge,

Appeal from an order of the United States District 
Court for the Western District of New York, John T.

* United States Supreme Court, retired, sitting by designation.



18

Curtin, Judge, requiring the City of Lackawanna to take 
all necessary steps to allow Kennedy Park Subdivision to 
proceed with its construction plans for the development of 
a low income housing project on a certain location in the 
City, together with the ancillary orders necessary thereto. 
Affirmed.

Michael Davidson, New York, New York (Jack Green­
berg, New York, New York, and Will Gibson, Buffalo, 
New York, on the brief), for appellees.

Charles S. Desmond, Buffalo, New York (Kevin Ken­
nedy, on the brief), for appellee Dicocese.

Alexander C. Boss, Attorney, Department of Justice. 
Washington, D. C. (Frank E. Schwelb, Attorney, Depart­
ment of Justice, H. Kenneth Schroeder, Jr., United States 
Attorney for Western District of New York, Jerris Leo­
nard, Assistant Attorney General), for plaintiff-interven- 
or-appellee.

Grace Marie Ange, Buffalo, New York (Condon. Kloeke, 
Ange <Sr Gervase, on the brief), for appellants.

Clark, Justice, Retired :

This is an appeal from a judgment of the United States 
District Court for the Western District of New York, 
Curtin, J., requiring the City of Lackawanna to take all 
necessary steps to allow Kennedy Park Subdivision to pro­
ceed with it construction plans for the development of a 
low income housing project on a certain tract of land, 
together with the supporting orders necessary thereto. The 
suit was commenced by the Kennedy Park Homes Associa­
tion, the Colored People’s Civic and Political Organization 
(C.P.C.P.O.), a membership corporation interested, in hous­
ing, the Diocese of Buffalo, New York, and individual home 
seekers. The defendants included the City of Lackawanna, 
its City Council and Mayor as well as other city officials.



19

The United States of America was permitted to intervene. 
The complaint alleged that the defendants had deliberately 
rezoned the property that the plaintiffs had selected for 
its housing project as a park and recreation area, and had 
declared a moratorium on new subdivisions, in order to 
deny decent housing to low-income and minority families, 
in violation of the Equal Protection and Due Process 
Clauses of the Fourteenth Amendment to the Federal Con­
stitution, the Civil Rights Act (42 IJ.S.C. !§ 1983) and the 
Fair Housing Act of 1968 (42 IT.S.C. § 3601, et seq.). After 
an extended trial the Court entered its decision and order
on August 13, 1970.___ F. Supp._____Thereafter this
court on September 3, 1970, granted a stay of the order 
conditioned on accelerated briefing and argument. We 
affirm the judgment and refer appellant Lackawanna’s ap­
plication for modification to the trial judge for such action 
as is warranted under the premises.

At the outset we point out that the comprehensive and 
well-documented decision and order of the learned trial 
judge has been most helpful to us in our consideration of 
the case. While the defendants-appellants attack the find­
ings as being based on inference and implication, we find 
after careful study that they are fully supported by the 
record and lead inescapably to the conclusion that racial 
motivation resulting in invidious discrimination guided the 
actions of the City.' The pattern is an old one and exists in 
many of our communities but appears to be somewhat more 
subtle in Lackawanna. However, when the chronology of 
events is considered, the discrimination is clear.

I.

First, we have a three-ward city with 87.9 percent of all 
of its nonwhite citizens living in the First Ward. The 
Second Ward, with a population of 8.974, has onlv-one non­



20

white person, while only 29 nonwhites reside in the Third 
Ward. The Bethlehem Steel Company’s plant, with its 
more than 20,000 employees, occupies at least half of the 
land area of the First Ward. This Ward also has the old­
est, most dilapidated dwelling houses, and the highest resi­
dential density with the greatest percentage of persons per 
unit in the city. Health-wise it is classified as a “high 
risk area,” having double the incidence of tuberculosis and 
the highest infant mortality rate of the entire city. Its 
juvenile crime rate is three times the city average, and its 
adult crime rate is double the average. The air pollution 
from the steel plant is at times unbearable because of the 
huge clouds of smoke, the dust and particules spewing 
from its furnaces and the open hearths that burn constant­
ly. To add insult to injury, a series of parallel railroad 
tracks serves the steel mill, running along the east bound­
ary of the First Ward and physically separating it from 
the rest of the City. Indeed the only traffic connection 
between the two is a single bridge that spans the railroad 
tracks at Ridge Road. This man made and City approved 
physical barrier actually segregates the black community 
of Lackawanna, located in the First Ward, from the rest 
of the City. The tracks are often tagged as the barrier 
“ between the ‘haves’ and the ‘have nots.’ ”

Second, the nonwhite residents of Lackawanna make up 
one-tenth of its population and 35.4 percent of the First 
Ward. The Planning and Development Board of Lacka­
wanna has seven members, all of whom are white and none 
of whom reside in the First Ward. Each Ward has one 
councilman and two are elected at large but the first 
Ward has only one member of the Council. There are 
three low income housing projects in the City of Lacka­
wanna. All of them are in the First Ward. The best 
housing in the First Ward, the Bethlehem Park project



21

built by the Steel Company, was restricted to whites until 
recently.

Third, although many of the blacks residing in the First 
Ward wish to move out of it, building contractors gener­
ally will not built a house for a black citizen in the Third 
Ward. As the Planning Consultant to the City expressed 
it to the Planning and Development Board as late as 
February 1968:

“ The Negro has indicated tremendous concern about 
his suspected confinement to the first ward. At almost 
every one of the Planning Board meetings, collectively 
they have stated they do not feel that any residential 
use should be allowed to remain in the first ward. In 
piercing through what they say, what they really mean 
is don’t keep us in the first ward, let us live where our 
income or our desires allow us. You have a tremen­
dous pressure building up in your community on the 
part of the non-whites to go across the bridge.”

In fact, only the month before representatives of the 
C.P.C.P.O. had called on the Director of Development of 
the City to inquire about the availability of city-owned 
land for subdivision development. Subsequently one of 
the plaintiffs in this case offered to buy 74 contiguous lots 
in the Second Ward for a housing development but this 
offer was tabled by the City Council. Although a group of 
ministers urged the Mayor to permit the sale, he told them 
informally that any sale of city property might have to be 
by public bid but that he would look into it. He never 
replied to their inquiry. Neither the Mayor nor the Di­
rector of Development made further reply.

In March 1968 arrangements were made with the Diocese 
of Buffalo by plaintiff C.P.C.P.O. to purchase 30 acres of 
the Diocese land in the Third Ward to be used for a pro­



22

posed Kennedy Park Subdivision, a low income housing- 
project, The site was located south of Martin Road and 
east of the proposed route of the “ McKinley Extension” 
highway. C.P.C.P.O. incorporated the Kennedy Park 
Homes Association as a housing or mortgagor company. 
This news was reported in the Buffalo and Lackawanna 
press. Petitions were circulated opposing the sale. One 
petition with 3,000 signatures was sent to Bishop McNulty 
of the Diocese opposing the sale for lack of sewer facilities 
and schools. It carried the name of both Mayor Balen and 
the President of the City Council. A meeting in the Third 
Ward also opposed the sale, and a group known as TIC A 
(Taxpayers Interested in. Civic Affairs) was a leader in 
opposition. In April 1968, at a meeting of the TIC A group, 
concern was voiced over both the sewage problem, and the 
schools as well as the damage that might result to property 
values if low income housing was constructed in the Third 
Ward. In addition some fears of increased unrest and 
misunderstanding were expressed if “a grand scale inte­
gration” rather than “ the gradual way” resulted. At a. 
later First Ward group meeting a report was made of this 
earlier meeting in the Third Ward. A spokesman for the 
First Ward group made reference to “ rumored threats 
of violent action” if moves from the First to the Third 
Ward were made and indicated the Justice Department 
and Attorney General’s Office had been alerted. A joint 
meeting was suggested but was never held. Both of these 
meetings in the Third and First Wards, respectively, were 
held under the auspices of the Commissioner of the New 
York State Human Rights Division and the Chairman of 
the Lackawanna Human Rights Commission.

Although plans were being studied for housing and sew­
erage improvements beginning in 1967, none had been 
adopted. On August 20, 1968, the Lackawanna Zoning



23

Board of Appeals and the Planning and Development 
Board met in joint session and recommended to the City 
Council a moratorium on all new subdivisions until such 
time as the sewer problem was solved. It also1 recom­
mended that parts of the Second and Third Wards be des­
ignated for open space and park area. This area included 
the land to be devoted to the proposed Kennedy Park 
Subdivision. Thereafter on October 7, 1968, the City Coun­
cil adopted both a moratorium and zoning ordinance along 
the line recommended by the Zoning Board of Appeals and 
the Planning and Development Board, but the area en­
compassed by the zoning ordinance was more limited to 
the immediate area surrounding the Kennedy Park site.

This suit was filed soon thereafter. On February 26, 
1969, after the United States had intervened, both ordi­
nances were rescinded. Subsequently the subdivision re­
quested permission to tie into the City sewer system. Be­
fore the Erie County Health Department will consider 
such requests, it must receive a “ Sanitary Form 5,” which 
is an application by the City on behalf of a subdivider to 
approve the sewer extension. The Mayor refused to sign 
this form. Without the sewer permit, the black citizens 
were unable to proceed with their project.

II.
There are some preliminary matters that we should first 

decide. Lackawanna filed a motion in the District Court 
for judgment on the pleadings. It was based on two 
grounds, i.e., the plaintiffs had not stated a claim upon 
which relief might be granted, and the case was rendered 
moot when Lackawanna rescinded the Zoning Ordinance 
restricting the use of the land in question as well as the 
Resolution declaring a moratorium on new subdivisions.



24

The argument is that plaintiffs have failed to show that 
Kennedy Park Homes Association is capable of building 
the subdivision, and that they therefore lack standing. As­
suming but not deciding that such a showing is necessary, 
it appears clear that the Association has met the test. The 
trial court held, and we think properly, that “ all Plaintiffs 
have a personal stake in the outcome of the controversy.’' 
The record shows that the Association has a “ commit­
ment” from the Diocese for the purchase of the site; the 
Federal Housing Administration has initially approved its 
application for federal financial assistance; a professional 
housing consultant has been engaged and the services of an 
engineer obtained. As soon as the Mayor certifies the nec­
essary sewerage form, the consummation of the project 
could be effected. We cannot permit Lackawanna to de­
prive the plaintiffs of standing by the refusal of its Mayor 
to sign the form. The Association has proven that it has a 
high stake in the litigation which it has instituted in order 
to provide the blacks in Lackawanna with sufficient housing 
facilities. Norwalk CORE v. Norwalk Redevelopment 
Agency, 395 F.2d 920, 927 (2d Cir. 1968).

As to the claim of mootness, it is noted that the repeal of 
the Ordinance and Resolution occurred after this suit was 
filed. Courts do not favor actions designed to stymie liti­
gation, particularly where the public interest is so deep.lv 
involved and is of the highest priority. United States r. 
W. T. Grant Company, 345 IT. S. 629, 632 (1963). Further­
more Lackawanna still blocks the development, since the 
repeal of the Ordinance and Resolution was followed by 
the Mayor’s refusal to approve the Association’s applica­
tion to tie onto Lackawanna’s sewer line. His continued re­
fusal is the real and presently existing obstruction.



25

A related contention suggests that the plaintiffs should 
be required to litigate the controversy in a state court. 
However, “Congress [has] imposed the duty on all levels 
of the federal judiciary to give due respect to a suitor’s 
choice of a federal forum for the hearing and decision of 
his federal constitutional claims.” Zwickler v. Koota, 389 
IJ. S. 241, 248 (1967). We see no sound reason in this case, 
in which the plaintiffs allege racially discriminatory ac­
tion by city officials, to justify denying to plaintiffs their 
federal forum.

III.
The main thrust of Lackawanna’s attack on the judgment 

here is that the finding of discrimination is not supported 
by the evidence. Lackawanna does not quarrel with the 
correctness of the district court’s view that its action must 
be assessed not only in its immediate objective but its 
historical context and ultimate effect, Lackawanna does 
“ take exception to the conclusions it [the Court] draws 
from the facts proven.” However, Rule 52(a) of the Fed­
eral Rules of Civil Procedure does not permit us to set 
aside findings unless they are “clearly erroneous,” giving 
due regard to the opportunity of the trial court to judge the 
credibility of the witnesses. See Allstate Insurance Com­
pany v. Aetna Casualty & Surety Company, 326 F. 2d 871, 
874 (2d Cir. 1964). The trial judge here devoted 22 days 
to the trial. He listened to and observed the witnesses, 
read and studied the various exhibits, and he was fully 
informed as to the atmosphere in which the parties acted. 
The conclusions or findings “as to the design, motive and 
intent with which men act depend peculiarly upon the credi­
bility given the witnesses by those who see and hear 
them.” United States v. Yellow Cab Company, 338 IT. S. 
338, 341 (1949). This factor is more significant where the 
state action under inquiry is insidious and subtle rather



26

than direct and open. While it “would be our duty to cor­
rect clear error, even in findings of fact,” id. at 342, we can­
not do so where the findings have substantial support in the 
record. Our examination of the record reveals substantial 
support for the findings here.

As the Supreme Court said in Burton v. Wilmington. 
Parking Authority, 365 U. S. 715 (1961): “Only by sifting 
facts and weighing circumstances” on a case by case basis 
can the “non-obvious involvement of the State in private 
conduct be attributed its true significance.” An analysis 
of Supreme Court cases in this area indicates the relevant 
considerations and approach. In Wilmington Parking Au­
thority, supra, at 725, the Court found Delaware to be 
involved in private discrimination because it had “elected 
to place its power, property and prestige behind the ad­
mitted discrimination” and by its inaction had made itself 
a party to the discriminatory act. And in Reitmam r. 
Midkey, 387 U. S. 369 (1967), the Court approved the 
action of the Supreme Court of California in striking- 
down Section 26 of Article I of the California Constitu­
tion because it involved the State in racial discrimination 
in the housing market. This conclusion was reached by 
consideration of the Section’s immediate objective, ulti­
mate effect and existing conditions at the time of its adop­
tion.

These two decisions completely undercut Lackawanna’s 
claims here. The mosaic of Lackawanna’s discrimination 
is a sad one. First, the long standing, man-made, physi­
cally segregated First Ward of the City; then the long- 
history of containment of 98.9 percent of the blacks of 
the whole city in the First Ward and their unsuccessful 
effort to escape it; and reaching into the present, the 
threats of violence that were made against the blacks



27

when the proposed Kennedy Park subdivision was first 
publicly announced; the petitions circulated and signed 
against the subdivision and especially the one sent to 
Bishop McNulty of the Diocese containing 3,000 names; 
the action of the Planning and Development Board of the 
City in reversing its predecessor and recommending addi­
tional residential use of the land in the First Ward which 
already had the highest residential density in the City, 
despite the tremendous pressure that had built up among 
blacks to “go across the bridge” ;1 the joint recommenda­
tion of the Planning and Development Board and the 
Zoning Board of Appeals to the City Council that it adopt 
a moratorium on new subdivisions and zone certain acre­
age, including the Kennedy Park subdivision site, as open 
space and park area respite the contrary recommenda­
tions of its planning expert; and the action of the; City 
Council on such recommendations and on the sewerage 
moratorium. Indeed, the Council included two false 
grounds supporting the enactment of the ordinance, viz., 
that the National Recreation and Park Association study 
had recommended the zoning of the area included in the 
ordinance and that the City’s Master Plan likewise ear­
marked the zoned area as recreation area. In fact, the 
National Recreation and Parle Association study did not 
Include the site of the Kennedy Park subdivision in its 
recommendation for zoning as public park property. The 
Assoeitaion had recommended a 40-50 acre community 
park west of the proposed McKinley extension, whereas

1 The Planning Consultant repeatedly urged the Board to restrict residential 
use in the First Ward, and not to use the area north of Ridge Road for 
residential purposes. He pointed out that this area had the worst pollution 
and dilapidated housing, that private developers would probably refuse to 
build there, that financing would be difficult, and that the residents would not 
receive the proper services. Nevertheless, the Board on August 20, 1968 
adopted a resolution setting aside part of this area north of Ridge Road for 
residential use, preferably apartments, although they disapproved of apart­
ments in virtually every other area of the City.



28

the Kennedy Park site was to the east. The PI an nine; 
Consultant concurred in this recommendation. City offi­
cials never asked either the Consultant or the Association 
to consider the east area as a park. On the contrary, 
prior to the news of the agreement to purchase the Ken­
nedy Park site, the Planning and Development Board 
thought that the open space designated for a park west 
of Martin Road was more than adequate. Both the orig­
inal and subsequent Master Plans earmarked acreage 
which included the site of the Kennedy Park subdivision 
for residential purposes. The final element in this dis­
criminatory pattern is the Mayor’s refusal to approve the 
sewer application following repeal of both ordinances.

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

These drastic measures are not justified under the au­
thority of Lackawanna in the exercise of its power to 
preserve the “ only” available land left in the City for 
park and recreation purposes, and to prevent a critical 
health problem from developing on account of inadequate 
sewage facilities. The plaintiffs sought to exercise their 
constitutional right of “freedom from discrimination by 
the States in the enjoyment of property rights.” Shelley v. 
Kraemer, 334 U. S. 1, 20 (1948). The effect of Lacka­
wanna’s action was inescapably adverse to the enjoyment 
of this right. In such circumstances the City must show 
a compelling governmental interest in order to overcome 
a finding of unconstitutionality. Shapiro v. Thompson, 
394 IT. S. 618, 634 (1969). The City has failed to demon­
strate an interest so compelling. None of the planning 
experts had recommended that the acreage included in the 
ordinance be unavailable for residential use. Nor did



29

either of the Master Plans so specify. As noted above, 
the record shows that among other areas recommended 
there was a 40-50 acre community park and recreation 
center with ice skating and swimming facilities south of 
Martin Road and west of the proposed McKinley exten­
sion. The Kennedy Park site is east of this property and 
was not included within it.2

With reference to the sewerage problem, the record 
shows that the sewer system is and has been for years 
grossly deficient; still Lackawanna has done nothing about 
it. On the contrary, it has deliberately permitted the 
problem to worsen. It has allowed at least nine sub­
divisions with some 450 homes in the Third Ward to 
tie into its sewer system. Consequently, the population 
of the Third Ward has greatly increased, producing a 
condition of open sewage. Only once (1967) has there 
been a moratorium on all sewerage connections and it 
ended within fewer than 100 days. Lackawanna should 
have corrected its system long ago. The City chemist 
has recommended the installation of storm and sanitary 
sewers, the elimination of roof leaders, the televising of 
certain lines to detect obstructions, and the construction 
of a 24-inch additional sewer line. Lackawanna has not 
acted on any of these suggestions nor attempted to secure 
federal or state assistance with regard thereto. In the 
meanwhile their plea lias been lack of money, which they 
now invoke to justify refusing to extend necessary sewer 
service to Kennedy Park. Lackawanna is obligated to 
deal with its sewer needs without infringing on plaintiffs’ 
rights. Even were we to accept the City’s allegation that 
any discrimination here resulted from thoughtlessness

2 The City now claims that the site of the proposed McKinley extension 
was uncertain, and therefore the entire area south of Martin Road had to be 
held for possible use as a park. This is an afterthought, appears never to 
have been considered by City officials, and asks us to assume that the highway 
officials would not cooperate. We consider this claim devoid of merit.



30

rather than a purposeful scheme, the City may not escape 
responsibility for placing its black citizens under a severe 
disadvantage which it cannot justify. Norwalk CORE, 
supra; Southern Alameda Spanish Speaking Organization 
v. City of Union City, California, 424 F. 2d 291 (9th Cir. 
1970). The City must provide sewerage facilities to the 
plaintiffs in conformity with the Equal Protection Clause 
of the Fourteenth Amendment and provide it as soon as 
it does for any other applicant. Oyama v. California, 332 
II. S. 633 (1948). The particular manner in which this is 
done is for the District Court.

We reiterate what was said over fifty years ago by 
Mr. Justcie Day for a unanimous Court in Buchanan v. 
Warley, 245 IT. S. 60. 80-81 (1917) :

“That there exists a serious and difficult problem aris­
ing from a feeling of race hostility which the law is 
powerless to control, and to which it must give a 
measure of consideration, may be freely admitted. 
But its solution cannot be promoted by depriving citi­
zens of their constitutional rights and privileges.”

We have examined the other claims of defendants-ap- 
pellants and find them without merit. The judgment ap­
pealed from is affirmed.



31

Decision and Order of the United States District Court 
for the Western District of New York.

UNITED STATES DISTRICT COURT
W estern D istrict of N ew  Y ork

KENNEDY PARK HOMES ASSOCIATION INCORPO­
RATED, COLORED PEOPLE’S CIVIC AND POLITI­
CAL ORGANIZATION, INC., JAMES M. THOMAS, 
SAMUEL MARTIN, THE DIOCESE OF BUFFALO, 
V Y.,

Plaintiffs,
UNITED STATES OF AMERICA,

Plaintiff-Intervenor, 
vs.

CITY OF LACKAWANNA, Lackawanna, New York, et al.,
Defendants.

Civil No. 1968-385.

S ir :

Jake notice of an ORDER, of which the within is a copy, 
duly granted in the within entitled action on the 13th day 
of August 1970, and entered in the Office of the Clerk of 
the United States District Court, Western District of New 
York, on the 13th day of August 1970.

Dated: Buffalo, New York, August 13, 1970.

ROLAND E. LOG-EL,
Clerk,

U. 8. District Court,
U. S. Courthouse,
Buffalo, New York 14202.



To:
Will Gibson,
Michael Davidson,
Kevin Kennedy,
Gerald W. Jones & Stephen P. Passek. 
Attorneys for Plaintiff,

To:
H. Kenneth Schroeder, Jr.,
Attorney for Plaintiff-Inf ervenor.

To:
Condon, Klocke, Ange and Gervase. 
Attorney for Defendant.



33

UNITED STATES DISTRICT COURT
W estern D istrict oe N ew Y ork

KENNEDY PARK HOMES ASSOCIATION INCORPO­
RATED, 36 Ridge Road, Lackawanna, New York, 

COLORED PEOPLE’S CIVIC AND POLITICAL 
ORGANIZATION, INC., 320 Ingram Avenue, 

Lackawanna, New York,
JAMES M. THOMAS, 128 Stoney Street, 

Lackawanna, New York,
S AMUEL MARTIN, 155 Wilmoth Street, 

Lackawanna, New York,
THE DIOCESE OP BUFFALO, N. Y.,
35 Lincoln Parkway, Buffalo, New York,

Plaintiffs,
UNITED STATES OF AMERICA,

Plaintiff -Intervenor, 
Vs.

CITY OF LACKAWANNA, Lackawanna, New York, 
MARK L. BALEN, as Mayor of the City of Lackawanna, 
MICHAEL T. DeFASQUALE, MELVIN D. WODZIN- 

SKI, FRANK AMROZOWICZ, EDWARD L. PIO- 
TROWSKI, THADDEUS SRODA, as constituting the 
Council of the City of Lackawanna,

FRANK D. CIPRIANI, As the Director of the Department 
of Development for the City of Lackawanna, 

EDWARD J. KTTWIK, As Chief Engineer for the City of
Lackawanna,

Defendants.

Civil No. 1968-385



Appearances:
Will Gibson, Buffalo, New York and Michael Davidson, 

New York, New York for the Plaintiffs Kennedy Park 
Homes Association, Inc,, Colored People’s Civic and Politi­
cal Organization, James M. Thomas and Samuel Martin.

Kevin Kennedy, Buffalo, New York (Charles S. Des­
mond, Buffalo, New York, of Counsel) for the Plaintiff 
Diocese of Buffalo.

Gerald W. Jones and Stephen P. Passek, Attorneys, De­
partment of Justice, Washington, D. C. (Jerris Leonard, 
Assistant Attorney General of the United States, and II. 
Kenneth Schroeder, Jr., United States Attorney, Western 
District of New York, on the brief), for the Plaintiff-inter- 
venor United States of America.

Condon, Klocke, Ange and Gervase (John W. Condon. 
Jr. and Grace Marie Ange, of Counsel), Buffalo, New York, 
for all Defendants.

COMPLAINTS:

On December 2, 1968, Kennedy Park Homes Association, 
Inc. (hereinafter referred to as K. P. H. A.), Colored Peo­
ple’s Civic and Political Organization (hereinafter refer­
red to as C. P. C. P. ().), James M. Thomas and Samuel 
Martin filed a complaint against the City of Lackawanna, 
Mayor Mark L. Balen, Director of Development Prank 
Cipriani, Chief Engineer Edward Kuwik and the then mem­
bers of the Lackawanna City Council charging violations 
of the Equal Protection and Due Process Clauses of the 
Fourteenth Amendment, the Civil Rights Act (42 U. S. C. 
§1983), and the Fair Housing Act of 1968 (42 II. S. C.
§ 3601 et seq.).

The complaint alleges that the Diocese committed itself 
to sell to K. P. H. A., a non-profit organization formed 
by the C. P. C. P. 0., 30 acres of its approximately 80 acres



35

of vacant land located in Lackawanna’s third ward for 
development of a low income housing subdivision. The two 
individual plaintiffs allege that they intend to purchase 
homes in the proposed subdivision.

Plaintiffs contend that certain resolutions amending the 
City’s zoning ordinances to restrict all land referred to 
therein to the exclusive use as a park and recreation area, 
and declaring a moratorium prohibiting the approval of 
all future subdivisions were passed in October, 1968 by 
the City Council for the purpose of denying low income 
families—whether they are elderly, Negro or Puerto Rican 
—the equal protection of the laws in obtaining decent hous­
ing. The Diocese contends the purpose of these resolutions 
was to deny it the right to use and dispose of its prop­
erty.

Among other tilings, the plaintiffs seek a judgment de­
claring the defendants’ use of the City’s zoning and ap­
propriation powers an unconstitutional deprivation of 
plaintiffs’ rights and mandatory relief requiring the de­
fendants to take steps toward the approval of the subdi­
vision. Plaintiffs also seek to enjoin defendants from en­
forcing the October, 1968 zoning and moratorium ordi­
nances.

On February 5, 1969, this court—the defendants offer­
ing no opposition—granted the United States of America 
leave to file a complaint in intervention pursuant to Sec­
tion 902 of the Civil Rights Act (42 IT. S. C. §2000 H-2). 
Plaintiff-Intervenor invokes this court’s jurisdiction under 
Section 813 of the Civil Rights Act of 1968 (42 IT. S. C. 
§3613).

The allegations in the complaint in intervention are sub­
stantially the same as those in the plaintiffs’ complaint. 
In its prayer for relief, the Plaintiff-Intervenor asks the



36

court to enjoin the defendants from engaging in any other 
acts or practices which have the effect of depriving Negroes 
of their right to purchase or rent dwellings in Lackawanna 
without regard to their race or color.

ANSWERS:

The original answer filed January 29, 1969, an amended 
answer filed February 17, 1969, and the answer to the com­
plaint in intervention filed February 17, 1969 generally 
deny the allegations of the complaints. The answers also 
assert five “defenses” : (1) Defendants allege that the City 
desires, and very much needs, a park and that construction 
of the proposed subdivision in the Martin Road area (the 
only large and centrally located vacant area left in Lacka­
wanna) would forever foreclose the City’s opportunity to 
have such a park; (2) Defendants allege that, the sewers 
in the Martin Road area are so overloaded that they could 
not tolerate the additional sewage of a new subdivision : 
(3) The Diocese of Buffalo has no standing to sue in this 
action; (4) The complaint fails to state a cause of action; 
and (5) The plaintiffs have failed to exhaust all adminis­
trative procedures to obtain the relief sought herein.

On June 19, 1969, the court granted the defendants leave 
to file a supplemental answer alleging the rescission of the 
October, 1968 ordinances on February 26, 1969. The thrust 
and purpose of the supplemental answer was to show that 
no legal impediment stood in the way of plaintiffs’ pro­
posed subdivision.

HISTORY OF LAWSUIT TO DATE:

In addition to the complaints and answers discussed 
above, certain other pre-trial proceedings bear noting to 
understand this lawsuit.



37

When the lawsuit was commenced, the plaintiffs applied 
for a temporary restraining order and a preliminary in­
junction restraining the defendants from rezoning the Mar­
tin Road area for parks and recreation and from enforcing 
the October, 1968 ordinances. No order was signed because 
the defendants consented to hold their park rezoning plans 
pending a final decision in this case.

After the defendants filed their supplemental answer 
setting forth the rescission of the October, 1968 ordinances, 
the plaintiffs submitted a “Sanitary 5” form to Mayor 
Balen for approval. The “Sanitary 5” form, with the 
mayor’s approving signature, is in the nature of an appli­
cation by the City on behalf of a subdivider to the Erie 
County Health Department for approval of a sewer exten­
sion.

On November 14, 1.969, this court gave the defendants 
two weeks to report on their disposition on the “Sanitary 
b” form. On November 28, 1969, the plaintiffs and the 
court were advised that the mayor refused to sign the 
“Sanitary 5” form. This refusal effectively stalled any 
further progress in plaintiffs’ attempt to obtain approval 
for their subdivision plans.

Afterwards, the defendants moved for a judgment on 
the pleadings pursuant to Rule 12(c) of the Federal Rules 
of Civil Procedure. The defendants argued that their 
affirmative defenses and the subsequent rescission of the 
October, 1968 ordinances established a “complete defense” 
to the plaintiffs’ actions. Pointing to the specific allega­
tions of the complaints, the defendants contended that the 
only act of any of the defendants complained of in the 
complaints was the passage of the October, 1968 ordi­
nances. Since the specific acts complained of were re­
scinded, the defendants argued, plaintiffs’ actions were



moot. This argument was directed against all plaintiffs, 
bnt especially against the Diocese whose right to dispose 
of its property, the defendants urged, was no longer im­
paired.

Tn light of the mayor’s refusal to sign the “Sanitary 5” 
form, and noting that the complaint in intervention prayed 
for an injunction restraining all acts denying Negroes the 
equal protection of the law in obtaining decent housing, 
the court denied the defendants’ motion in all respects.

Immediately prior to trial, extensive pre-trial statements 
of fact and memoranda of law were submitted by the par­
ties. The trial began on April 9, 1970 and concluded on 
May 21, 1970, after 22 trial days. The parties then sub­
mitted post-trial briefs of facts and law. Oral argument 
was heard by the court on July 10, 1970. On all of the 
evidence introduced at the trial and arguments made by the 
parties, the court makes the following findings of fact and 
conclusions of law pursuant to Rule 52 of the Federal Rules 
of Civil Procedure.

COLORED PEOPLE’S CIVIC AND 
POLITICAL ORGANIZATION:

The C. P. C. P. O. filed its original certificate of incorpo­
ration on August 9, 1929. This membership corporation 
was formed

“to promote good fellowship and to extend the ac­
quaintance of its members and for social and political 
gatherings and lectures, and other amusements for the 
general welfare and benefit of its members.”

The organization apparently went through a period of 
inactivity until a reactivation in February, 1962. Richard 
Easley has been president of this organization from its 
reactivation to date.



39

Shortly after reactivation, the organization showed in­
terest in housing. Most of the members were (and are) 
residents of Lackawanna’s first ward and many of them 
are employed at the Bethlehem Steel plant.

The minutes of the C. P. C. P. 0. are replete with refer­
ences to housing discussions among the membership, to 
non-member speakers concerning the housing situation, and 
to reports of C. P. C. P. 0. representatives meeting with 
private and governmental officials about the housing prob­
lem. In January, 1968, for example, the C. P. C. P. 0. 
made inquiries of Director of Development Frank Cipriani 
concerning available vacant land in Lackawanna. They 
made a written offer to purchase certain vacant land owed 
by the City in the second ward.

In March, 1968, the C. P. C. P. 0. had obtained a “com­
mitment” from, the Diocese for approximately 30 acres of 
vacant land south of Martin Eoad. On March 15, 1968, 
the C. P. C. P. 0. created K. P. H. A., a non-profit member­
ship corporation for the development of low income hous­
ing. Two officers of C. P. C. P. 0. became officers of K. P. 
H . A.

K. P. H. A. plans to act as its own general contractor 
in building the subdivision. However, to aid in this 
endeavor, it will call upon specialists in various fields. 
One step was taken early in 1969, when K. P. H. A. retained 
Cleon Cervas, a Buffalo real estate broker, to conduct a 
survey of potential home buyers in order to determine their 
eligibility for financing. After interviewing 23 individuals, 
Mr. Cervas tentatively determined that about 20 would be 
eligible for some kind of mortgage. Because of the uncer­
tainty of when final applications would be made, these pre­
qualifying interviews were terminated after the lawsuit 
was filed.



40

DIOCESE OF BUFFALO:

The Catholic Diocese of Buffalo encompasses within its 
territorial jurisdiction the entire City of Lackawanna with 
its predominantly Catholic population.

The Diocese is one of the largest landowners in the City. 
In addition to several small parish churches and schools 
which occupy small parcels of land, the Diocese “owns” a 
large complex located near South Park Avenue and Ridge 
Road in the third ward known locally as “Father Baker’s.” 
which includes Our Lady of Victory Basilica, Our Lady of 
Victory Hospital, Father Baker’s Orphanage, and a large 
high school facility. The Diocese also owns Holy Cross 
Cemetery and approximately 80 acres of vacant land, most 
of' it situated in the area north and south of Martin Road.

The Diocese is represented by Attorney Kevin Kennedy, 
who participated in many of the negotiations for the pur­
chase of vacant land not only with C. P. C. P. O. but also 
with the City officials.

LACKAWANNA :

The City of Lackawanna is a municipal corporation 
established under the laws of the State of New York. A 
special census taken of Erie County in 1966 showed a total 
population of 28,717 in Lackawanna, of which 2,693 (9.4%) 
were nonwhite.

The City :is divided into three wards, the boundaries of 
which are defined in the City Charter. The first ward is 
the westernmost ward in the City, completely bounded on 
the west by the Bethlehem Steel plant situated on Lake 
Erie. A series of railroad tracks runs along the entire 
eastern boundary of the first ward with a bridge serving 
as the only connection with the City between the first ward



41

and the second and third wards. The second ward com­
prises the middle sector of the City, hounded entirely on 
the west by the railroad tracks and on the east by South 
Park Avenue. The third ward is the eastern sector of the 
City, bounded on the east by the Lackawanna city line.

The City is bounded on the north by the City of Buffalo, 
on the east by West Seneca and Orchard Park, on the 
south by the Town of Hamburg, and on the west by Lake 
Erie.

The 1968 census figures show that 98.9% of 2,693 non- 
whites living in Lackawanna live in the first ward, and 
these nonwhites comprise 35.4% of the total first ward 
population. Comparison of census figures in 1950, 1960 
and 1966 show that the percentage of nonwhites in the first 
ward has increased from 25% in 1950 to 35.4% in 1966. 
There is sliarp contrast between the first ward and the 
other two. The 1966 census figures show 29 (0.2%) non­
whites out of a total third ward population of 12,229. Com­
parison of census figures in 1950, 1960 and 1966 show a 
doubling in the white population of the third ward from 
6,324 in 1950 to 12,200 in 1966.

The population of the second ward has changed little 
through the years, but it must be noted that, out of a 1966 
population of 8,974, there was only one nonwhite.

The most pervasive influence on all Lackawanna life is 
the Lackawanna plant of the Bethlehem Steel Corporation, 
located on the shores of Lake Erie in the westerly part of 
the first ward. This plant, established there in 1901 and 
operated by the Bethlehem Steel Corporation since the 
early 20’s, has grown to a massive industrial operation 
employing over 20,000 men. At present, it takes up at 
least half of the entire land area of the first ward. Recent­
ly, increasing industrial needs have led to an encroach­



42

ment by the corporation on former residential land. For 
example, New Village, Bethlehem constructed housing lo­
cated in the northern part of the first ward, is gradually 
being demolished for conversion from residential to Bethle­
hem use.

Unloading docks for ore boats, rail facilities, blast fur­
naces, coke ovens, open hearths, and mills for the manu­
facture of rails, beams, sheet steel, and many other steel 
products are located at Lackawanna. The blast furnaces 
and open hearths, which are the major sources of air pollu­
tion, are located in the northern part of the plant. To flu- 
south are situated shipping areas and other mills which do 
not contribute as heavily to air pollution. Across Route b 
in the southern portion and immediately south of Bethle­
hem Park, a residential area, is the strip mill which manu­
factures sheet steel. The plant continues to the south on 
both sides of the highway into the Town of Hamburg. 
Included in the facilities in that area is the main office. 
Bethlehem Steel Corporation is the largest single taxpayer 
in the City and employs a fulltime community relations 
man to work on City-plant problems.

At certain times in the steel making process, huge billow­
ing clouds of dust, smoke, and other particles are spewed 
into the atmosphere, especially into the northern part of 
the first ward. However, the entire City of Lackawanna 
suffers from severe air pollution due primarily to the loca­
tion of the Bethlehem Steel plant,

Nevertheless, there is a sharp contrast between the first 
ward and the other two wards in the amount of pollution, 
housing problems, congestion, and other environmental 
factors. The series of railroad tracks running along the 
eastern boundary of the first ward practically separate the 
first ward from the remainder of the City. The only con­



43

nection between the first ward and the rest of the City is 
the single, long Ridge Road bridge. The east-west thor­
oughfares, located in Buffalo to the north and Hamburg to 
the south, are some distance removed and do not provide 
an effective means of travel from the first ward to other 
areas of Lackawanna.

The first ward is described in the Model City application 
which was prepared and submitted by the City of Lacka­
wanna to the Department of Housing and Urban Develop­
ment in 1967, in the following way:

“ . . . This area is in very poor structural condition 
because of the age of dwellings and the poor environ­
mental characteristics fostered by the Bethlehem Steel 
Company.

#  #

Visual evidence substantiates the belief that housing 
deterioration and overcrowding within the M. N. A. 
(Model Neighborhood Area—first ward) are more 
than twice those of the city as a whole.

=& #

Another major contribution to the physical blighting 
of the area (M. N. A.) is the smoke which blows from 
the stacks of Bethlehem Steel, spreading dirt, dust 
and pollution throughout the area.”

The first ward has the oldest, most dilapidated housing, 
the highest residential density with the most housing units 
per acre, and it has the largest number of persons per hous­
ing unit. The Erie County Department of Health has 
classified the first ward as a “high risk area.” There is a 
high infant mortality rate and tuberculosis is twice as 
prevalent as in the city as a whole. The juvenile crime 
rate is almost three times, and the adult crime rate is more 
than double the city average.



44

Tlie worst section of the first ward for housing and air 
pollution is in the area north of Eidge Eoad. Eecently, of 
126 housing units in that area, 74% of them was inhabited 
by blacks- The best housing in the first ward is in Bethle­
hem Park in the southern part. This housing was estab­
lished by the Bethlehem Steel Company as an all-white 
residential area for employees of the Lackawanna plant. 
Until very recently, no blacks were allowed to live there.

In considering the issues in this case, the structure of 
■city government and the duties of various city officials 
should be noted. A new Charter in 1964 considerably 
altered the makeup of city government. Under the old 
system, the mayor, elected for a two-year term, had a lim­
ited appointive power, no veto and, in the City Council, 
only voted to break legislative ties. At that time, there 
were four wards, each ward having one councilman. Be­
cause this system emphasized the role of the ward council 
man, decision making reflected ward needs rather than the 
good of the City as a whole.

Under the new Charter, each ward has a councilman 
elected for a two-year term. In addition, there are two 
couneilmen-at-large, elected for four years, making up a 
legislative body of five. The mayor, elected for a four-year 
term, now has a greatly increased and more effective role 
in city government. He is empowered to appoint the Direc­
tors of Public Safety, Public Works, Development, and 
Parks and Becreation. Important to this case, he also 
appoints the members of the Planning and Development 
Board. As chief executive officer of the city, each depart­
ment head reports to the mayor.

Mayor Mark Balen became mayor on January 1, 1968. 
Since the early 60’s, he was a councilman. He testified that 
the transition from the old system to the new required



45

considerable adjustment because it was difficult for the 
citizens and the ward councilmen to become accustomed to 
the diminished role of the councilmen in city government. 
Before enactment of the Charter, it was not unusual for 
the councilmen to usurp normally executive or administra­
tive roles of the officers of city government. The mayor 
felt that it would take citizens and city officials some time 
to become used to the new Charter.

A particular question created by the change in the Char­
ter was the power to approve new subdivisions. Under 
the old system, a subdivision was approved by a three- 
fourths vote of the Council. No standards for approval 
other than those exercised by the vote of the Council were 
set. What is now required for approval of subdivisions 
under the new Charter is confusing. The opinion of Frank 
Cipriani, Director of Development, is that the Planning 
Board has this authority, but such authority is not clearly 
set forth in the Charter or the Administrative Code. Fur­
thermore, it was not clear from the evidence what stand­
ards govern the issuance of building permits.

When Mark Balen assumed the office of mayor on Janu­
ary 1, 1968, he appointed Frank Cipriani Director of De­
velopment, The Director of Development is the Executive 
Director of the Planning and Development Board and also 
of the Zoning Board of Appeals. The composition of the 
Planning and Development Board is set forth in City 
Charter Chapter 8, Section 8.3. The board consists of 
seven members—one councilman appointed by the City 
Council, one City official, and five citizen members to be 
appointed by the mayor to serve three-year terms. After 
Mayor Balen had completed his appointments to the board, 
four members of the board resided in the third Avard, three 
in the second, and none in the first. There Avere no black 
members on the board.



46

There are three low income housing projects in the City 
of Lackawanna, all located in the first ward. Baker Homes 
and the Gates Avenue Project are operated by the Lacka­
wanna Municipal Housing Authority, and Albright Court 
is privately owned.

The amount of vacant land left in Lackawanna is limited. 
Most of it is located in the third ward, and much of this 
is owned by the Catholic Diocese of Buffalo. The City 
owns 74 vacant lots in the second ward.

PLANNING:

Various planning studies and reports were admitted into 
evidence for the light they shed upon the City’s problems—■ 
past, present, and future. Among the most important of 
these are: (1) The Model City application submitted bv 
the City of Lackawanna to HUD on April 29, 3967; (2) 
The Master or Comprehensive Plan and supporting re­
ports prepared by Patrick Kane of KRS Associates, Tnc.: 
and (3) A Study of Parks and Recreation for Lackawanna, 
prepared by the National Recreation and Parks Associa­
tion and finally submitted by a report dated .Tune, 1968.

The Model City application described all aspects of city 
life in detail. Housing supply and condition, public facili­
ties, health services, educational services, the crime prob­
lem, social services, employment, and many other details 
of life in the City of Lackawanna were enumerated. The 
Model Neighborhood Area to which particular attention is 
paid in the application is the first ward. Some quotations 
from the application accent some of Lackawanna’s prob­
lems :

“Lackawanna poses a unique problem in housing in as 
much as there is a physical boundary between the 
‘haves’ and ‘have-nots’ in the city.”



47

The first ward area is described in this way:

“ • • • There is a high percentage of Negro and other 
minority groups in this area. This adds to the diffi­
culty of relocation since Lackawanna is in fact a segre­
gated community.”

The Model City application was the source of much of 
the statistical information set forth in other parts of this 
decision.

The Comprehensive Plan or Master Plan was prepared 
by Patrick Kane of KRS Associates, Inc., a planning con­
sultant firm. The State of New York and Mr. Kane entered 
into a contract to provide professional assistance in the 
development of the Plan. His work on the Plan is carried 
out with the cooperation of HITT), State of New York, and 
( -ity of Lackawanna officials.

A Comprehensive or Master Plan, according to Mr. 
Kane, is a long-range statement of development goals for a 
municipality that uses an analysis of present conditions, 
determines the trends in the community, and forecasts its 
needs in relation to land use, community facilities, trans­
portation networks, zoning ordinances, and capital im- 
provement programs that relate to the goals of the com­
munity. However, the Plan is not fixed. The purpose of 
the Plan is to provide a general framework so that the 
City can make an intelligent and responsible decision rela­
tive to its development.

Mr. Kane began his work early in 1966. He prepared a 
number of detailed studies and plans in conjunction with 
the development of the Lackawanna Comprehensive Plan. 
These documents covered such fields as land use, popula­
tion trends, economic analysis, transportation and zoning. 
He met monthly with the Planning and Development Board



48

and the Director. During 1966 and ’67, the Director was 
Nicholas Colello. He was replaced on January 1, 1968 by 
Frank Cipriani. At each monthly meeting, Mr. Kane and 
members of the board discussed in detail the studies and 
report as they were being prepared.

Mr. Kane presented three alternative land use plans to 
the board. Each plan designated the area south of Martin 
Road and east of the proposed McKinley extension as 
“residential—low density” and some or all of the area south 
of Martin Road and west of the proposed McKinley exten­
sion as recreation space.

Because of the poor environmental conditions, Kane 
wanted to restrict the residential use of the first ward as 
much as possible. However, because the board insisted 
upon keeping low densities in other parts of the City, he 
recognized that some residential use must be made of the 
first ward. The elimination of all residences in the first 
ward would create a difficult rehousing problem in Lacka­
wanna because of lack of space in other parts of the City 
to provide housing at the densities required, and because 
of “the social problems which would result from the mas­
sive relocation of low income and minority groups into 
basically white and higher income areas of the City.”

However, Planner Kane repeatedly urged the board not 
to use the area north of Ridge Road for residential pur­
poses. He pointed out that this area suffered from the 
worst air pollution, had the most run-down housing, that 
private developers probably would not build there, that it 
would be difficult to obtain financing, and that Ridge Road 
separated this small area from the rest of the community 
so that the residents there would not receive proper serv­
ices. Further, he urged elimination of Bethlehem Park 
because it is surrounded by industrial, railroad, and com­



49

mercial enterprise, it is separated from the rest of the City, 
and it is too small to support schools, stores, and other 
community facilities. The elimination of housing in these 
areas would mean that there would be increased densities 
in other parts of the City.

However, in spite of Kane’s urging, the board approved 
the continuance of Bethlehem Park for residential use, 
mainly single-family homes, and also adopted a resolution, 
on August 20, 1968, setting aside part of the area north 
of Ridge Road in the first ward for residential use. prefer­
ably apartments.

Another basic difference between the board and Mr. 
Kane arose over the board’s demand for encouragement of 
single-family dwellings and the limitation of apartments. 
Kane protested that this would deprive many members of 
the community—the elderly, the poor, the single person, 
some minority families and the newly-married—of housing 
opportunity.

From March to August, 1968, Air. Kane met several 
times with the board, principally to discuss the use of the 
land north of Ridge Road. During the same period, with­
out his advice or consultation, the board conducted joint 
meetings with the Zoning Board of Appeals about the 
“sewer crisis” and the use of the Martin Road land. Their 
alleged concern was never called to his attention, nor did 
they ever discuss with him or ask him to change the pro­
posals for the Martin Road area.

After the board adopted its resolution concerning the 
use of the Ridge Road area on August 20, 1968, Mr. Kane 
then began his work to put the Plan in final form and have 
it printed. In the summer of 1969. Air. Kane sent on to 
Mr. Cipriani the proposed Final Report and told him it



50

was ready for final printing. He also sent to Mr. Cipriani 
a letter for the mayor’s signature, giving his official en­
dorsement to the Plan. The Final Plan was circularized 
to various City officials. Mayor Balen signed the letter 
and the Plan, in final form, was printed in October, 1969 
and distributed. The Martin Eoad land use remained un­
changed in the final Plan.

PARKS AND RECREATION:

Several of the City’s actions challenged by the plaintiffs 
in this lawsuit are based, the defendants claim, on the 
City’s urgent need for more recreation and park space. In 
1962, the City included in its capital appropriations budget 
the sum of $25,000 for a recreational study to be made in 
1967 or 1968. In 1966, the Capital Expenditures Board of 
the City recommended to the City legislators that a com­
munity recreation center costing $250,000, and an all- 
weather swimming pool costing $150,000 be included in 
the capital budget. In 1967, $25,000 was appropriated for 
recreation studies. Finally, on June 29, 1967, the City 
engaged the National Recreation and Park Association 
(hereinafter referred to as N. R. & P. A.) to do a study of 
the park and recreation facilities of the City at a cost of 
$2,400. Robert D. Buechner was in charge and Arthur T. 
Noren was a consultant, concerned primarily with the rec­
reation program and financial considerations. Buechner 
concerned himself with site location and facilities.

Mr. Buechner and Mr. Noren worked in cooperation with 
the Lackawanna Department of Parks and Recreation and 
Mr. Kane, in connection with his report.

The N. R. & P. A. submitted two reports. The first was 
a preliminary report sent to the City Department of Parks 
and Recreation in November, 1967. The final report, dated



51

June, 1968, was probably printed in August, 1968 and de­
livered to the City of Lackawanna early in October, 1968. 
After the preliminary report was delivered to the City in 
November. 1967, Mr. Buechner discussed it with Mr. Ga- 
lanti, at that time Director of Parks and Recreation.

During .1968, he consulted further with the Department 
of Parks and Recreation and Mr. Kane about the final 
report. Both reports made similar recommendations for a 
community park and recreation center in the Martin Road 
area. Mr. Buechner recommended that a 40 or 50-acre 
community or district park, containing a community center 
with ice skating and swimming facilities and play fields 
for sports, be developed south of Martin Road and west 
of the proposed McKinley extension. The planner con­
sidered this site the best for a district park since this 
centrally located area was one of the last large areas left 
in the City, and because the most southerly portion of it 
bounded the south branch of Smokes Creek in a flood plain 
area.

According to the minimum standards of the N. R. & 
P. A., a community park for a city of 30,000 usually re­
quires 70 acres, but Mr. Buechner testified that, because 
Lackawanna High School in the third ward and Friendship 
House in the first ward supplied many of the facilities 
usually found in a community park, 40 to 50 acres was 
sufficient to satisfy the recreation needs of the City of 
Lackawanna. Mr. Kane concurred in the N. R. & P. A. 
proposal.

During the planning process, neither Mr. Buechner nor 
Mr. Kane ever advised acquiring land east of the McKin­
ley extension (eventually the K. P. H. A. site) for park 
or recreation. Nor did any City official ask the planners 
to consider this area to the east for park and recreation.



52

On February 15, 1968, the Planning and Development 
Board approved Alternate “C” which designated the area 
south of Martin Boad and west of the Thruway for park 
and open space, and the area to the east (K. P. H. A.) for 
residential nse. Moreover, the board at that time com­
mented that the western area was too large for a park 
purpose, but decided to keep it designated “park and open 
space” until a more definite plan could be made.

The N. B. & P. A. also recommended the acquisition of 
South Park, which is within the city limits of Buffalo and 
borders Lackawanna to the north. An attempt by Mayor 
Balen to negotiate with the City of Buffalo in behalf of 
Lackawanna to purchase South Park was strongly and 
quickly rebuffed by City of Buffalo officials.

It should be also noted that the K  B.. & P. A. report 
recommended that the City acquire a 200-foot right-of-way 
along both branches of Smokes Creek for park and hiking 
trails. Since this land was in the flood plain, the use for 
recreation was strongly urged. The City has not taken 
any steps to implement this proposal.

In early 1968, an attempt was made by the City to acquire 
vacant land for recreation purposes when several meetings 
were held by City officials with Kevin Kennedy, attorney 
for the Diocese of Buffalo. Mr. Kennedy informed the 
Lackawanna officials that, although no land was available 
for sale at that time, the Diocese was willing to lease land 
to the City north of Martin Boad for a playground area. 
The mayor declined this offer since he felt that the City 
had enough playgrounds; that it needed a large area for a 
park, and that a lease would not fit in well with long-range 
planning for Lackawanna.



53

The City claims that it is difficult to plan in the Martin 
Road area because the location of the proposed McKinley 
Parkway Extension is in doubt. For many years, the De­
partment of Transportation of the State of New York and 
Lackawanna officials have discussed the construction of a 
north-south highway connecting McKinley Parkway at the 
Buffalo City Line to the north with McKinley Parkway 
Extension in the Town of Hamburg to the south. The cor­
ridor for this proposed highway parallels Abbott Road and 
borders the westerly bounds of the proposed K. P. H. A. 
site. Although the exact bounds of this highway have not 
been fixed, nevertheless, because another subdivision is 
built up on the other side of Martin Road to the north of 
K. P. H. A., the ultimate course of this highway will not 
prevent the planning and construction of homes in the 
K. P. H. A. area.

SEWERS:
As noted elsewhere in this opinion, the City urges that 

many of its actions were taken because of a serious sewer 
situation in the City as a whole, and especially in the 
Martin-Abbott Road area. On some residential streets 
in that section, occasionally sewage has backed into cellars 
during heavy rainfalls.

The Lackawanna sewers are deficient in many other ways. 
For this reason, the City must spend a large sum of money 
to improve the system and, upgrade it to state standards. 
For example, the sanitary and storm sewer lines are com­
bined in many areas. Furthermore, on older residential 
streets the roof leaders and footing drains run to the 
sanitary sewer lines. Therefore, in periods of heavy rain, 
the storm water rushes into the sanitary line causing over­
flows and cellar backups. Thaddeus .T. Pieczonka, Super­



54

intendent of the Lackawanna Sewage Treatment Plant 
since the early 1940’s, explained the impact of this com­
bination of systems:

“300 homes of four people each could be serviced by an 
8-inch (sanitary sewer) pipe. Yet the same pipe would 
be full if all the footing drains and roofing drains 
were connected from 10 homes.”

The Wilmuth Street Pumping Station located in the 
first ward is the main collection point for sanitary sewage 
in Lackawanna. From it, sewage is pumped to the primary 
treatment plant which is designed for a population of about 
80,000 people. Adjacent to the Wilmuth Pumping Station 
is the Well Street Pumping Station, recently remodeled at 
a cost of about $500,000. The Well Street Station pumps 
storm water flow from the first ward into Smokes Creek 
and, if there are overflows from the Wilmuth Station, 
pumps that material, after chlorination, into the creek.

Another crucial part of the Lackawanna system is the 
Seal Street Pumping Station, located in the second ward 
near the railroad tracks and next to the south branch of 
Smokes Creek. The Pumping Station intercepts the over­
flow from sanitary sewers and discharges it directly into 
the creek, after chlorination, in order to prevent sewage 
backing up into cellars. The overflow usually occurs dur­
ing rainy weather but, because of line blockages, spillages 
can happen when it is dry.

The pumping of sewage into the creek is a hazard to 
health and must be corrected. As Mr. Katra, former 
Lackawanna Chief Engineer, bluntly put it, “Dilution is 
no longer a solution to pollution.”

The best way to describe one of the problems in the third 
ward is in Mr. Pieczonka’s language :



55

“Just beyond St, Anthony Drive three 10-inch sewers 
funnel into one 15-inch sewer. This 15-inch sewer in 
turn empties into an 18-inch, sewer on Martin Road. 
However, this 18-inch sewer on Martin Road has an­
other 15-inch sewer coming in from upper Martin 
Road and another 10-inch sewer from Ludel Terrace. 
Eventually, this 18-inch Martin Road trunk, with all 
the above mentioned connections, enters a 15-inch sewer 
on. South. Park Avenue. This sewer on South Park 
cannot handle the load which, then spills into the ad­
jacent On-inch interceptor leading to the Seal Street 
Pumping Station.

The Martin Road sewer becomes overloaded in. the 
area near Maryknoll Drive even during light rains. 
Yet building another sewer on Martin Road will only 
aggravate the water pollution problem, of Smokes 
(beek at Seal Place, because more raw sewage will be 
bypassed.’’

There are other citywide problems to solve. By order of 
New York State, Lackawanna must install a secondary 
treatment facility not later than 1972. In addition, Lacka­
wanna must incorporate, the sewers north of Ridge Road 
in the third ward into the Lackawanna system. For many 
years, the Buffalo Sewer Authority serviced this area at a 
rental of $250',ODD a year. Because Buffalo insists that. 
Lackawanna sever this connection, Lackawanna must spend 
a considerable sum. to bring these sewers into the Lacka­
wanna system.

The City of Lackawanna points to its Council minutes 
over the past ten years, noting the repeated reference to 
sewer problems and proposed sewer studies to indicate its 
continuing concern for a solution of this, problem. How­
ever, many of the studies proposed have never been under­



56

taken; many of the complaints received were filed without 
action; and many of the practical, suggestions made for 
resolution of the problems have not been, acted upon. From 
1963 to 1967 when there were many complaints about sewer 
problems, the City of Lackawanna approved seven sub­
division Sanitary 5 forms in the third ward area and issued 
many building permits after the subdivisions were ap­
proved. On two occasions after the FHA had rejected 
subdivision applications because of sewer and flooding 
problems, the City nevertheless issued building permits for 
construction in these subdivisions. However, it should be 
noted that one subdivision application, that for Sharon 
Park subdivision, was disapproved because of lack of sewer 
facilities and also because the State Department of Trans­
portation requested that, this area be. reserved for a high­
way.

At least since 1964, and on several occasions after that, 
Mr. Pieczonka, made recommendations to alleviate the third 
ward sewer problem. He suggested that Lackawanna (1) 
Build a new 24-inch sanitary sewer from. Abbott Eoad di­
rectly to the Wilmuth Street Pumping Station; (2) Hire a 
consulting engineering firm to make a detailed study of the 
Lackawanna sewer system; (3) Install the necessary pump 
and lines to force sewage from Seal Street to the treat­
ment plant rather than have it discharge sewage into 
Smokes Creek; (4) Televise the Martin Road sewer from 
Abbott Road to South Park to determine if any obstruction 
exists in the sewer; and lastly, (5) Eliminate the roofing 
and footing drains from the older buildings. These last 
two suggestions could be undertaken quickly without large 
expense to the City.

A recent independent study made of all Erie County 
sewer systems strongly recommended that the roof leader



57

connections be separated from the sanitary sewers in Lack­
awanna. A few years ago, the City passed an ordinance 
requiring this separation but an enforcement process was 
not begun until June, 1969 when the state directed that the 
connections had to be eliminated or the City would lose 
state aid.

The 1968 budget included an. authorization for a com­
prehensive sewer study and a Council resolution of October, 
1968 requested a. similar study but, in spite of the claimed 
“sewer crisis,” these studies have not been undertaken.

Furthermore, the City has taken no action either to ex­
amine or put into effect the other suggestions made by Mr, 
Pieezonka.

FLOOD PROBLEM:
()n about six occasions since 1942, Smokes Creek flooding 

has substantially damaged certain areas in Lackawanna. 
To prevent this, the Corps of Engineers undertook—and 
has almost completed—a flood control project. The Corps 
issued in 1965 a flood plain information report for the 
Smokes Creek basin.

The flood plain report provided contours for statistical 
prediction of floods. The levels used were: One flood in a 
period of 250 years ; one in a period of 100 years ; one in 
50 years, and one in 10 years. As an example, the contour 
line shown at the 50-year level means that, based upon past 
history, the statistical prediction is that once every 50 
years the water level will come to the level of the contour 
line shown on the map.

The report contained a number of recommendations. It 
urged that, by the use of zoning, restrictions be placed upon 
land most frequently flooded. Lackawanna, is authorized



58

to enact these ordinances, but has not done so as. yet. The 
report strongly urged that flood plain areas be used for 
park or recreation, without the construction of expensive 
buildings. Some of the older residences in Lackawanna 
were constructed below the 50-year level and a few as low 
as the 10-year level.

During the testimony, there was reference to the Martin 
Road area flood problem. Martin Road itself is. at a higher 
level than the Creek and. well removed from any flooding 
areas. Since the K. P. H. A. subdivision abuts Martin 
Road to the south, the north branch is not of particular 
concern to us. The land of the proposed subdivision drains 
from Martin Road in a southwesterly direction, and 
eventually to the south branch. There is a ditch located 
in the southwesterly portion of the subdivision recently 
deepened and widened by the Corps of Engineers. This 
ditch facilitates the drainage of this subdivision and also 
provides drainage for the Ludel subdivision, which is gen­
erally to the east and on the other side of the Baltimore 
and Ohio tracks which run along the easterly side of the 
K. P. IT. A. subdivision. The lands lying to the south and 
west of the subdivision are open fields dropping off gently 
to the south branch.

Some sublots, generally in the southwestern part of the 
K. P. TI. A. subdivision, lie within the contour of the 100- 
year projected flood area. There were five sublots also 
within the 50-year area. The site engineer for the Federal 
Housing Administration, in determining whether or not this 
area was suitable for a subdivision, considered the flood 
plain report and the improvements made and proposed by 
the Corps of Engineers. He determined that, if fill was 
provided in certain other areas and required, standards 
met, the land was feasible for the construction of the pro­



59

posed subdivision. Based upon the F. II. A. investiga­
tion, the plaintiffs received a letter of feasibility from the 
F. H. A. on March 18, 1969. By this letter, the F. H. A. 
states that financing assistance will be available for resi­
dential construction on this site if K. P. H. A. meets F. 
II. A. standards.

EVENTS LEADING UP TO THE PASSAGE OF THE 
OCTOBER, 1968 ORDINANCES.

OTHER RECENTLY APPROVED SUBDIVISIONS:
As population statistics in 1966 indicate, there exists in 

the City of Lackawanna a de facto separation of the races. 
Almost all of the Negro population of the City lives within 
the first ward, while the population of the second and third 
wards is almost completely white. The population of the 
third ward has increased in recent years while the popula­
tion of the first ward has decreased. One reason for this 
Increased white population in the third ward is the num­
ber of subdivisions approved in Lackawanna’s third ward 
from 1963 to 1967. A catalog of recently approved third 
ward, subdivisions, derived from the official records of the 
Erie County Health Department, appears below:

1. Willett Park Subdivision: Sanitary 5 form signed
by mayor; approved by Erie County Health Depart­
ment July 16, 1963—-68 lots.

2. Pacific Subdivision: Sanitary 5 form signed by
mayor; approved by Erie County Health Department 
July 16, 1964—18 lots.
3. Autumn Acres Subdivision: Sanitary 5 form
signed by the mayor; approved by Erie County Health 
Department July 23, 1965—138 lots.



60

4. Burke Subdivision: Sanitary 5 form signed by
mayor; approved by the Erie County Health Depart­
ment September 9, 1965—7 lots.

5. Meadowbrook Subdivision, Part 3: Sanitary 5
form signed by mayor; approved by the Erie County 
Health Department April 20, 1965—11 lots.
6. Smith Subdivision: Sanitary 5 form signed by
mayor ; approved by the Erie County Health Depart­
ment on February 2, 1965—52 lots.

7. Majestic Acres Subdivision: Sanitary 5 form
signed by mayor; approved by the Erie County Health 
Department February 3, 1967—27 lots.

The records of the Buffalo Office of the Federal Housing 
Administration indicate the existence of the following ad­
ditional subdivisions in Lackawanna’s third ward, even 
though there is no reference to such subdivisions in the 
Lackawanna records or Erie County Health Department 
records: 1

1. Abbott Heights Subdivision (Edison Street). Sub­
division deemed not feasible on April 7, 1964—32 lots.
2. Ludel Subdivision (Ludel Terrace and Sander 
Drive). Subdivision deemed not feasible January 8, 
1964 but houses are in fact being constructed in the 
subdivision—93 lots.

It is also important to note the number of construction 
permits for residential units issued by the City in the 
third ward from 1964 to 1968. There were 129 permits 
issued in 1964, 163 in 1965, 103 in 1966, 84 in 1967, and 61 
in 1968.



61

FIRST MORATORIUM RESOLUTION PASSED BY 
THE CITY COUNCIL ON MAY 15, 1967.

At a meeting of the City Council on May 15,1967, Resolu­
tion 98 was moved by then Councilman (now Mayor) Balen 
and carried unanimously. I t directed the Department of 
Development and Engineering to refuse to issue building 
permits in new subdivisions already approved and to re­
fuse to approve any new subdivision applications. Four 
reasons were given by the Council for the passage of this 
resolution: (l)The existence of many newly approved sub­
divisions and streets in the third ward; (2) The constant 
flooding and sewer backups; (3) The present inadequacy 
of the sewer system; and (4) Certain new third ward sub­
divisions which were planned. This ordinance was enacted 
long before discussions began about the proposed K. P. H. 
A. subdivision.)

On. the same day, May 15, 1967, in addition to moving 
Resolution 98, Mr. Balen also requested the City Attorney 
to draw up an ordinance waiving the zoning ordinance to 
permit Frank Cipriani to build a multiple dwelling at 
Abbott and Pacific. This intersection is in the third ward, 
not far from the Martin Road area. The ordinance was 
adopted by the Council in August, 1967, vetoed by the 
mayor, and later, on motion of Mr. Balen, the mayor’s veto 
was overridden. Because of difficulty of financing, Mr. 
Cipriani was not able to build the multiple dwelling de­
sired.

At a City Council meeting on August 21, 1967, Resolu­
tion No. 112 was passed unanimously rescinding the May 
15, 1967 moratorium resolution. The premises of this 
resolution were an improved sewer situation and a direc­
tive by the Council to the Engineering Department to 
make a sewer study. In rescinding the prior moratorium



62

resolution, the Council went on record admonishing against 
the approval of new subdivisions in the flood areas. At that 
meeting even though the resolution rescinding the mora­
torium was passed unanimously, Councilman Balen asked 
for a legal opinion on the moratorium concept.

Entered in the minutes of the City Council meeting of 
September 18, 1967 was the opinion of the City Attorney, 
Nicholas Haragos, concerning the moratorium resolution 
passed on May 15, 1967. His opinion was that the May 
15, 1967 moratorium was an illegal “taking” of property 
because it inhibited the issuance of building permits in 
already approved subdivisions. The treatment was un­
equal because it disadvantaged owners of property in sub­
divisions by barring them from receiving permits, while 
allowing adjacent property owners to obtain them.

OTHER EVENTS OCCURRING IN 1967 WHICH ARE
PART OF THE BACKGROUND OF THE PASSAGE 

OF THE OCTOBER, 1968 ORDINANCES.
The October 19, 1967 minutes of the C. P. C. P. 0. re­

flect the concern of the members about the demolition of 
housing in the first ward and the need for relocation plans. 
Mr. Colello, then Director of Development, attended that 
meeting and told the members that, in his. opinion, no 
builders would build homes for them in the third ward.

At the October 23, 1967 meeting of the Planning and De­
velopment Board, Patrick Kane discussed the housing 
problem. He explained that, in order to provide proper 
housing for all of the residents of Lackawanna, it was 
necessary to use a variety of structures—single-family 
dwellings, town houses, garden apartments, and apartment 
dwellings. He pointed out that it was not possible to have 
only single-family dwellings because of the cost of land, the



63

need to have certain densities of population so that the 
services of schools, parks, and stores could he properly 
provided, and the necessity to provide for residents of all 
ages and economic backgrounds. He told them that hous­
ing should be discouraged in areas of the City where the 
adverse effects of smoke, noise, or congestion could not be 
abated.

Because of these factors, special attention was required 
for the planning of housing in the first ward. He discussed 
the first ward situation in the following way:

“Now why do we even want to put houses in the first 
ward again. They are not going to be as good there 
as they are going to be somewhere else. One reason 
is because it’s a transitional neighborhood, a starter 
neighborhood. There [sic] people that live there can't 
afford to live somewhere else until they can get enough 
money to move. Or maybe because of the race issue. 
Again you can’t live in the past on that issue because 
we have laws that are doing something about that 
every day. So if we think there is going to be a bar­
rier against race across that railroad track, we may 
as well forget planning altogether.”

He explained to them that, with the use of federal funds, 
old patterns of living had to change. He said:

“An implied subject in all of this discussion we have 
had here, if we talk about changing the second ward, do 
you know how we are going to do it. We are going 
to do it with some kind of federal aid I ’ll guarantee 
you that and you know what that’s going to mean. I t’s 
going to mean that that bridge has been broken and it’s 
not going to be any one man holding any other man 
back from, buying a home. We will never advertise 
this at a meeting because that’s a dangerous approach



64

to the general population just as saying that we are 
only going to build public housing. You don’t say 
things like that publicly.”

Emmett Wright, Chairman of the C. P. C. P. 0. Housing 
Committee, spoke at the meeting. He told the board that 
the first ward Negro desired to move out of the first ward 
and acquire a single-family residence.

As early as December, 1967, the minutes of the C. 1’. 
C. P. 0. reflect that Harold Thornton, a professional hous­
ing consultant, had been contacted by the organization to 
assist it in its efforts to obtain housing in the third ward. 
At the November 2, 1967 meeting of the C. P. C. P. O., 
a survey was taken to determine how many people would 
be interested in purchasing homes in a third ward sub­
division development.

EABLY 1968 EVENTS
In early January, 1968, representatives of the C. P. C. P. 

0. visited Prank Cipriani to inquire about city-owned land 
which may be available for subdivision development. 
Cipriani, who had been in office but a few days, replied 
that he knew of no city-owned land available at that time, 
but he would investigate to see if such land existed. In a 
letter dated January 23, 1968, and before Cipriani re­
sponded to the inquiries of the C. P. C. P. 0. representa­
tives, that organization offered to purchase 74 contiguous 
lots in the second ward near Electric and Van Wick Streets. 
The C. P. C. P. 0. was later informed that their offer bad 
been tabled by the City Council for study.

During this period, a group of ministers visited Mayor 
Balen to discuss with him the offer to purchase. The 
mayor told them that he thought that such purchases could 
only be completed after a public bid, but told them he 
would look into it. They heard nothing further from him.



65

During the same time period, newly-installed officers of 
the City of Lackawanna approached Attorney Kevin Ken­
nedy about the City’s possible acquisition of diocesan land 
in the Martin Road area. The first meeting occurred on 
January 8, 1968, with Frank Cipriani and other City of­
ficials present. Kennedy at that time informed them that 
there was presently no land for sale. He explained that 
the land around Martin Road was reserved for church use. 
Later in January, 1968, a second meeting in Kevin Ken­
nedy’s office was held concerning the City’s proposed pur­
chase of Martin Road land. Present at that meeting were 
Cipriani and Mayor Balen. Kennedy repeated his “no 
sale” position, but said, he would let the City know if the 
Diocese should, change its mind and decide to offer any of 
the Martin Road land for sale. At the previous meeting, 
Kennedy had suggested a short term lease of land north 
of Martin Road for the purpose of erecting a playground, 
but this suggestion was unacceptable to Mayor Balen.

In the early part of 1968, the Planning and Development 
Board was told that it would have to finally approve the 
comprehensive plan as soon as possible. At a meeting 
of the board on January 23, 1968, Mr. Kane explained 
to the new board members the nature of a comprehensive 
plan and summarized what had been accomplished to date 
on the Lackawanna plan. Tn January and February of 
1968, five new members were appointed by Mayor Balen 
to the Planning and Development Board. After these ap­
pointments, there were four members of the board from 
the third ward, three from the second ward, none from 
the first, ward, and no black members.

Another meeting of the Planning and Development Board 
was held on February 1, 1968. Mr. Kane made a further 
explanation of the past work of the board and explained to



66

them the three alternative land use plans which the prior 
board had considered. In speaking to them about the first 
ward, he said:

“The Negro has indicated tremendous concern about 
his suspected confinement to the first ward. At almost 
every one of the planning Board meetings, collectively 
they have stated they do not feel that any residential 
use should be allowed to remain in the first ward. In 
piercing through what they say, what they really mean 
is don’t keep us in the first ward, let us live where our 
income or our desires allow us. You have a tremendous 
pressure building up in your community on the the part, 
of the non-whites to go across the bridge.”

On February 15, 1968, the new Planning Board took 
under consideration the three alternative land use plans 
submitted by Kane for approval as the final plan. These 
were the same alternatives considered by the former 
board. Each of these alternative plans designated the 
area south of Martin Road and east of the proposed 
McKinley extension as “ residential-low density.” Each 
designated some or all of the area south of Martin Road 
and west of the proposed McKinley extension as recrea­
tion. space.

The basic difference in the various alternatives was the 
use of areas in the first ward. Alternative “ A” preserves 
residential use in the area south of Ridge Road in the first 
ward, including Bethlehem Park. It eliminates, however, 
any residential use of the area north of Ridge Road in 
the first ward. Alternative “ B” completely eliminates 
the first ward as an area for residential use. Alternative 
“ C” provides for the continued residential use of the area 
in the first ward south of Ridge Road, but not including 
Bethlehem Park



67

At the meeting of February 15, 1968, the Planning and 
Development Board generally approved Alternative “ C” 
with certain modifications. The prior Planning and De­
velopment Board had approved Alternative “ C” without 
modification. The modifications to Alternative “ C” de­
vised by the new board are: (1) First Ward: The reten­
tion. of Bethlehem Park as a residential area and a stated 
preference for as many single-family dwellings as possi­
ble in areas previously designated medium density resi­
dential use; (2) Second Ward: High density residential 
area, eliminated around commercial and governmental com­
plex and, again, as many single-family homes as possible; 
and (3) Third Ward: The board expressed some doubt 
about consultant’s intention with respect to the Ridgewood 
Village area, presently designated medium density area. 
Whatever his plans were, however, they went on record as 
preferring single-family dwellings. In addition, the board 
thought that the area in the Martin Road area designated 
in Alternative “ C” for a possible school site and open 
space is “ too large for open space or park area,” They 
decided to leave this question, open, for future discussion.

At the March 12, 1968 meeting of the Planning and 
Development Board, the results of the February 15, meet­
ing were reviewed and Mr. Kane presented Alternative 
“ D” which, he represented, was a reflection of Alterna­
tive “ 0 ” with the modifications approved by the board 
on February 15. Mr. Kane noted that he had originally 
proposed increasing the City’s population from. 28,000 to 
36,000. Alternative “ D”, by reducing densities, antici­
pated a population of 31,000 or 32,000. He again told them 
that emphasis upon single-family homes for most of Lacka­
wanna residents was not practical or desirable, since this 
would eventually cause a decline in population, a lower tax 
base, and a housing shortage for residents who do not 
need, or cannot afford, a single-family home.



68

The minutes of the March 28, 1968 meeting of the Plan­
ning and Development Board reflect that the board did not 
want Alternative “ D” suggested by Mr. Kane. Alterna­
tive “D” did not propose the area north of Ridge Road in 
the first ward for a residential purpose. The hoard 
adopted a resolution approving Alternative “ C” with the 
following modifications. In the first ward, it desired the 
continued residential use of Bethlehem Park and the use 
of the area north of Ridge Road for commercial purpose 
with some residential use, preferrably apartments. In 
the second and third wards, it, wanted the high residential 
density to be eliminated. In these wards, the hoard wanted 
single and two-family homes, with three and four-family 
apartments only when necessary to obtain a population of 
about 31,000.

At the same meeting, the hoard discussed rumors about 
the Martin Road property owned by the Diocese of Buffalo. 
Several members heard that the Diocese planned to sell 
this property to an organization for low income housing. 
The board directed Cipriani to conduct an inquiry regard­
ing these rumors. Following the board’s direction, Cip­
riani sent a letter to Kevin Kennedy about this matter.

In mid-March, 1968, the C.P.C.P.O. met with Attorney 
Kevin Kennedy concerning the sale of Martin Road prop­
erty for the proposed subdivision. Shortly thereafter, on 
March 23, 1968, members of the C.P.C.P.O. incorporated 
K.P.H.A. as a housing or mortgagor company. In April, 
1968, Buffalo and Lackawanna newspapers reported the 
proposed sale of Martin Road property by the Diocese to 
K.P.H.A.

In April, 1968, a petition was circulated in the third 
ward opposing the sale of land by the Diocese on the basis 
that the proposed housing would be “ low income” housing.



69

Another petition with 3,000 signatures was sent to Bishop 
McNulty of the Diocese, opposing the sale of the land 
“ due to lack of schools and inadequate sewers.” That 
petition carried the names of the incumbent mayor, the 
then president of the City Council, and the incumbent 
president of the City Council. Mayor Balen explained at 
trial that he did not sign the petition but that, in all like­
lihood, his wife did.

A meeting was held in Ridgewood Village in the third 
ward for the purpose of protesting the proposed sub­
division. As the opposition mounted to the proposed sub­
division, the newspapers covered the events in detail. One 
group particularly opposed to it was the third ward group 
known as “ Taxpayers Interested in Civil Affairs” (known 
as TICA). A leader in the TICA organization was Henry 
Starzynski, who sent a strident letter to the Lackawanna 
Leader adamantly opposing the proposed sale to K.P.H.A.* 1
51 “Frank E. Hollins, Publisher 

Lackawanna Leader
Dear Mr. Hollins:

I wish to alert the citizenry of all the suburban areas within the 
geographical tangents _ of the ‘Roman Catholic Diocese of Buffalo’ to a 
problem so grave, with ultimate ramifications so serious as to directly 
jeopardize the very existence of our finest suburban communities. Resi­
dents of West Seneca, Cheektowaga, Lancaster, Amherst, Orchard Park 
and Hamburg should take particular note.

As a 'Roman Catholic’ I am appalled, shocked and ashamed of the 
arrogant, ruthless, viciously totalitarian powers assumed and exerted by 
Bishop McNulty and the Hierarchy of the Roman Catholic Diocese of 
Buffalo.

It has now become apparent that the Bishop and the Catholic Hierarchy 
have embarked on a calculated scheme to physically alter our choice 
suburban communities and thereby promote their religiously oriented phi­
losophies while the unsuspecting property owners of these areas will be 
compelled to suffer the inherent agonizing consequences.

The first phase of an apparent Diocesan master plan is to be instituted 
on a Catholic Diocese tract of land on Martin Road in Lackawanna, where 
an integrated, low-cost housing development is to be injected. This low- 
cost housing development would be immediately adjacent to a developed 
area with homes and property presently valued at from $20,000 to $60,000.

The already overburdened^ taxpayers throughout our far-flung suburbs 
may well be faced with additional skyrocketed taxes inherent with these 
concentrated developments,

(Footnote continued on following page)



70

HUMAN EIGHTS COMMISSION ACTIVITY IN FACE 
OF GROWING CONCERN ABOUT PROPOSED 

SUBDIVISION.
Because of the mounting opposition to the proposed 

Kennedy subdivision in the third ward, and because of the 
possible racial overtones that lie behind this opposition, 
Emil Cohen, a Commissioner of the New York State 
Human Rights Division, requested Stanley Gworek, the 
Chairman of the Lackawanna Human Rights Commission, 
to hold special meetings to discuss the problems generated 
by the proposed construction of the third ward subdivision 
by the C.P.C.P.O. As a result of the State Commissioner’s 
request to the Lackawanna Human Rights Commission, 
Chairman Gworek arranged to meet with TICA and other 
concerned white citizens and also to meet with the CPCPO 
to discuss the problems facing the community as a result 
of the rumored subdivision.

On April 10, 1968, Gworek, together with Cohen, met 
with the TICA group and, during the course of this meet­
ing, heard the people voice their concern over the sewer I

(Footnote continued from preceding page)
Zoning laws may well become flexible when strained by the ‘men of the 

cloth.’
The Diocesan attorney, Mr. Kevin Kennedy has made various vain 

attempts to white-wash the dark consequences of this critical problem.
I urge all property owners throughout the Western New York suburban 

areas to evaluate their own position in relation to this potential danger.
It appears apparent that the Catholic Hierarchy of the Buffalo Diocese 

has joined the ranks of the many irresponsible politicians in this ‘give­
away’ ideology who are attempting to placate the shamelessly immoral, 
savagely violent groups who are rioting, burning and killing their way 
into a hideously shameful page of our nation’s history.

These ‘give-away’ programs are tearing at the very fabric of our 
Nation’s economy and our country’s very existence, while the decent, 
toiling, tax-paying white and colored Americans alike are forced to pay 
the expenses of certain unscrupulous politicians and certain clergy as 
well.

HENRY PAUL STARZYNSKI 
Lackawanna”



71

situation, the need for new schools, and. their interest in 
protecting their property values which they thought would 
diminish if low income housing was constructed in the 
third ward. Cohen pointed out that there were practical 
and legal methods of insuring that the high quality en­
vironment in the third ward neighborhoods would be main­
tained even if the first ward group constructed homes in 
the third ward. He suggested that restrictive covenants 
could be attached to the land, requiring certain minimum 
values on all houses to be constructed in a particular 
neighborhood. He ventured the opinion that the first ward 
people who wished to move to the third ward would be 
equally as concerned with schools and sewers as the people 
in the third ward present at the meeting. One man at the 
meeting interjected that “ the Negro in the third ward have 
been accepted [sic] without incident and a grand scale 
integration now instead of the gradual way now being 
down [sic] will only cause more unrest and misunderstand­
ing/’ At the end of this meeting, it was agreed that an­
other meeting would be scheduled later in conjunction with 
the first ward group, at which representatives of both 
sides would meet and exchange their views.

The meeting with the first ward group was held on April 
24, 1968 and again Gworek and Cohen conducted the meet­
ing. Cohen briefly summarized the attitudes of the third 
ward group expressed at the first meeting. He stated that 
they were concerned with sewers, schools, and housing 
values. He noted that, “ if these are the only objections 
to the sale of the land, we now have a common ground to 
begin.’' Harold Thornton, the K.P.H.A. consultant, acted 
as spokesman for the first ward group expressing their at­
titudes toward moving to the third ward and the recently 
evidenced opposition to this move. He referred to rumored 
threats of violent action if first ward families attempted



72

to move to the third ward, but assured that arrangements 
had already been made through the Justice Department and 
the Attorney General’s office if these threats had any basis 
in fact. He suggested a series of meetings be set up to 
orientate both groups on the common problems of living 
together in the same community. As to the sewer problem, 
Thornton noted that the mayor’s budget had some provi­
sions for sewers in this area, but that further improvement 
had been hindered because of a personality conflict between 
the present administration and the City Council. As in the 
first meeting, it was agreed that another meeting would 
be held where representatives of this group would meet with 
representatives of the third ward group to discuss their 
problems.

On April 29, 1968, Emil Cohen wrote Stanley Gworek in­
quiring about the present prospects for the third meeting 
between the two groups. Apparently this meeting was 
never held.

On June 25 and 26, 1968, Gworek, with other members 
of the Lackawanna Human Rights Commission, traveled 
to New York City to discuss the K.P.H.A. plans with 
officials of the Department of Housing and Urban Develop­
ment. This New York City meeting was arranged at least 
partially by Harold Thornton, acting for the K.P.IL.A. 
At the New York City meeting, the anticipated Fair Hous­
ing Act of 1968 was discussed. He testified that he intend­
ed to return to Lackawanna and “ prepare the parties in­
volved for the inevitability of the action which seemed to 
. . . confront (Lackawanna) city officials with the things 
which were going to happen based on the new federal law 
. . .” He reported the results of the meeting to Council- 
men DePasquale and Wodzinski



73

However, Richard Easley, the president of C.P.C.P.O., 
and other members of that organization apparently mis­
understood the reason why the Lackawanna Human Rights 
Commission had traveled to New York to meet with the 
HUD officials. Robert Pino, the Negro member of the 
Lackawanna Human Rights Commission, was chastised by 
Easley and others for meddling in C.P.C.P.O. affairs. 
The fact is, however, that the K.P.H.A. consultant, Harold 
Thorton, arranged the meeting and asked the members of 
the Lackawanna Human Rights Commission to attend.

APRIL AND MAY MEETINGS OF THE PLANNING 
AND DEVELOPMENT BOARD.

On April 25, 1968, the Planning and Development Board 
met again. In speaking about the area north of Ridge 
Road in the first ward, Mr. Kane informed the board that 
it would be “very hard to develop any kind of rational 
f.sic] to support . . . (their) recommendation of resi­
dential use in this area,” He pointed out to them that the 
part of that area, which was available for residential use 
was too small and, furthermore, since Ridge Road was 
heavily traveled, it separated the north side from the rest 
of the area. After discussion, the board refused to follow 
Kane’s advice and adhered to their former decision.

On May 1, 1968, Mr. Kane met again with the board. 
He attempted once more to persuade them not to use the 
area north of Ridge Road for residential purposes. The 
board was warned that private developers would refuse to 
build there, that housing would deteriorate, and that the 
land available was too small to provide the citizens there 
with necessary services needed for a residential neighbor­
hood. In spite of that, the board again insisted that resi­
dential use, preferably apartments, be made of this area.



74

MEETINGS OF THE ZONING BOARD OF APPEALS 
AND THE PLANNING AND DEVELOPMENT 

BOARD.

Oil January 17, 1968, the District Director of the Corps 
of Engineers wrote a letter to municipal officers in Erie 
County, including Lackawanna, explaining that the Corps 
had completed a flood plain information report for the 
area and offering assistance to communities in developing 
flood plain regulations.

Later, when the rumors started to circulate about the 
sale of the Diocesan land to K. P. H. A., Mr. Cipriani call­
ed a joint meeting of the Zoning Board of Appeals and 
the Planning and Development Board on April 20, 1968.

At a meeting of the Lackawanna Zoning Board of Ap­
peals held on May 7, 1968, Mr. Cipriani discussed the 
Smokes Creek flood plain study and gave a copy of it to 
each member of the board. Mr. Cipriani pointed out to 
the board that “ this report makes definite reference to 
the land on Martin Road and at the present time we are 
having quite a problem with this area . . . .  They (Corps 
of Engineers) would prefer to see the flood plain areas de­
veloped for recreation . . . ” He asked the members to 
read the report so that it could be discussed at a later 
meeting. I t should be noted that Martin Road itself is 
well out of the flood plain area, and only the southwest 
part of the K. P. H. A. subdivision is within any part of 
the flooding zone.

On June 11, 1968, another joint meeting of the two 
boards was held. A Corps of Engineers representative 
explained the flood plain report in detail to the members.



75

ACTIONS OF THE PLANNING AND DEVELOPMENT
BOARD IMMEDIATELY PRIOR TO THE CITY 

COUNCIL’S PASSAGE OF THE OCTOBER,
1968 ORDINANCES.

As a result of the joint meeting held on June 11, 1968, 
Mr. Cipriani was instructed to request Edward Kuwik, 
the Chief Engineer of Lackawanna, to prepare a sewer 
study for the Martin Road area. At an August 1, 1968 
meeting of the Planning and Development Board, Kuwik’s 
response to this request was to make available the March, 
April, and May, 1968 report prepared by Thaddeus Piec­
zonka, the Chief Chemist, which was distributed for con­
sideration by members of the board.

Two meetings were held on August 20, 1968. The first 
was a special meeting of the Planning and Development 
Board called to consider the map prepared by Mr. Kane, 
which showed the land use proposal for the north of Ridge 
Road area. The sketch proposed that 15.9 acres be set 
aside for residential use. The board gave its final ap­
proval to that proposal.

This meeting was followed by a joint meeting of the 
Zoning Board of Appeals and the Planning and Develop­
ment Board. Also present at that meeting were the City 
Clerk, Gerald DePasquale, and the Chief Chemist, Thad­
deus Pieczonka. Cipriani stated that the meeting was 
called for the special purpose of discussing the acute sew­
er conditions existing in the southeast portion of the 
second and third wards of the City of Lackawanna. Noting 
that the board members had been given a copy of the 
March, April, and May, 1968 report of Mr. Pieczonka, Mr. 
Pieczonka was requested to interpret it. Mr. Pieczonka 
explained in detail how the sewer lines in this area became 
overloaded, causing either cellar backups or overflows of



76

sewage into Smokes Creek. He informed them that, if 
the creek pollution was not corrected, the City would lose 
$55,000 a year in state financial aid. He recommended to 
the hoard a comprehensive sewer study, the separation of 
storm and sanitary sewers, the elimination of roof leaders 
from the sanitary system, televising of certain sewers to 
find obstructions, and the construction of a 24-inch sewer 
line from Abbott Road directly to the Wilmuth Pumping 
Station. He told the board that, in his opinion, it was 
most doubtful that the Erie County Department of Healt h 
would approve a subdivision application in an area where 
the City was bypassing raw sewage into a stream.

The first motion made at this meeting was to direct a 
communication to the City Council recommending that the 
Council hire a consulting engineer to make a, study of the 
sewer problems in the entire southern part of the second 
and third wards of the City. This motion was passed 
unanimously, 
animously.

Ho action was taken on Mr. Pieczonka’s other recom­
mendations. Instead, Mr. Cipriani initiated discussion 
about discouraging development in this area until the 
sewer problem was resolved. Pieczonka responded that, 
if both boards were going to go on record discouraging de­
velopment in this area, that area should be defined as the 
southeast part of the second and third wards to the City 
Line of Lackawanna. A motion was then made that the 
joint boards issue a moratorium on all new subdivisions 
until such time as the sewer problems abated. This mo­
tion was carried unanimously.

Cipriani then initiated further discussion concerning 
the possible rezoning of the southeast portion of the second 
and third wards for the purpose of park and recreation. 
He pointed out that this suggestion would fill a. two-fold



77

need: (1) It would provide for the much needed park 
space in one of the last vacant areas in Lackawanna; and 
(2) It would insure against the worsening of sewer prob­
lems and the Smokes Creek flooding problems. In addi­
tion, the members discussed the flood plain report pre­
pared by the Corps of Engineers. A motion was then 
made to recommend that the City Council rezone a portion 
of the area described by Mr. Pieczonka for recreation. 
The motion reads as follows:

“ . • • [T]he Zoning Board of Appeals and the Plan­
ning and Development Board recommend to the City 
Council that any and all vacant open land situated 
within the following boundary—south of the north 
branch of Smokes Creek, bounded by the B&O tracks 
on the east, on the south by the city line at Willett 
Road and on the west by South Park Avenue approxi­
mately 1000 feet east of South Park Avenue, be desig­
nated for open space or park area.”

The motion was passed unanimously.
When he testified, Mr. Pieczonka described the problem 

area as all of the southern part of the second and third 
wards south of the north branch of Smokes Creek, ex­
tending from South Park Avenue on the west to the city 
line on the east. The area encompassed by the board’s 
resolution is much smaller than that described by Mr. 
Pieczonka. The area in the resolution did not include any 
part of the second ward or any part of the third ward east 
of the Baltimore and Ohio tracks.
Meetings with HUD about Sewers

Harold Thornton arranged a meeting in New York for 
Lackawanna and HUD officials to discuss the availability 
of federal assistance for Lackawanna sewers. Although a 
number of Lackawanna officeholders went to New York on



78

September 11, 1968, the day of the meeting many of them 
did not attend. Mr. Cipriani and some members of the 
Council went, but neither Mayor Balen nor John O’Connor, 
City Engineer of Lackawanna, did. Mr. O’Connor explain­
ed his absence by saying that the City did not want to: 
appear “ totally committed.” Mr. O’Connor’s supervisor, 
Edward Kuwik, Chief Engineer, went but left before the 
meeting was over. Pieczonka and an Assistant City At­
torney were not informed of the correct meeting time and, 
when they arrived, the meeting was almost finished.

On September 18, 1968, HUD officials inspected the 
Lackawanna treatment plant in Mr. Pieczonka’s company. 
However, the conversation centered upon, moneys avail­
able for secondary treatment. Mr. Pieczonka could not 
recall any discussion about the Martin Road problem.

OCTOBER, 1968 ORDINANCES: THEIR PASSAGE 
AND RESCISSION.

The City Council, on October 7, 1968, heard a first read­
ing of the rezoning and moratorium resolutions. The zon­
ing ordinance2 designated an area in the third ward ex-

2 ’ ”  ZONING ORDINANCE AMENDMENT
CITY OF LACKAWANNA.

BE IT ENACTED by the City Council of the City of Lackawanna, New 
York, as follows :

The Zoning Ordinances of the City of Lackawanna adopted by the Common 
Council on September 7, 1937 and all ordinances amendatory thereto and the 
Building Zone Map of the City of Lackawanna are amended as follows:

The following described area is hereby designated as an area exclusively 
designated for parks and recreation:

BEING ALL OF LOTS 435, 434, 433 AND PARTS OF LOTS 352, 353, 
354, 355, 432, 431, 430 and 429, ALL BEING IN T. 10, R. 7 OF TH E 
BUFFALO CREEK RESERVATION.

BEGINNING AT A POIN T IN TH E CENTER LIN E OF TH E 
NORTH BRANCH OF SMOKES CREEK W H ERE IT  INTERSECTS 
W ITH  TH E W EST LIN E OF GREAT LOT 532, TO W N SH IP 10, 
RANGE 7, THENCE RUNNING SOUTHERLY ALONG TH E W EST 
LINE OF GREAT LOTS 352 AND 435, TO W N SH IP 10, RANGE 7 TO

(Footnote continued on following page)



79

clusively for parks and recreation. This area, smaller 
than that proposed by the Planning and Development 
Board, was in the third ward south of the north branch of 
Smokes Creek. However, it included the area where the 
TL P. H. A. subdivision was located, but excluded the area 
covered by Majestic Acres subdivision which was approved 
in 1966, and where sublets were still available for con­
struction.

The second ordinance3 created an indefinite moratorium 
on the approval of new subdivisions because of the sewer

(Footnote continued from preceding page)
TH E CENTER LIN E OF W ILLET ROAD, THENCE EASTERLY 
ALONG TH E CENTER LINE OF W ILLET ROAD TO TH E W EST 
LINE OF TH E NEW YORK STATE THRUWAY, THENCE RUN­
NING NORTHERLY ALONG TH E NEW YORK STATE THRUWAY 
TO TH E W EST LINE OF TH E B. & O. RAILROAD, THENCE RUN­
NING NORTHW ESTERLY ALONG TH E W EST LINE OF TH E 
B. & O. RAILROAD TO TH E CENTER LIN E OF NORTH BRANCH 
OF SMOKES CREEK, THENCE RUNNING W EST ALONG THE 
CENTER LINE OF T H E NORTH BRANCH OF SMOKES CREEK TO 
T H E W EST LIN E OF GREAT LOT 352, TOW NSHIP 10, RANGE t  
TH E POINT OR PLACE OF BEGINNING.

If any section, subsection, sentence, clause or phrase of this ordinance 
amendment is, for any reason, held to be invalid, such decision shall not 
affect the validity of the remaining portions of this ordinance.

The City Council hereby declares that it would have passed this ordinance 
amendment and each section, subsection, clause and phrase thereof, irrespective 
of the fact that any one or more sections, subsections, sentences, clauses or 
phrases be declared invalid.

THIS ORDINANCE SHALL TAKE EFFECT IMMEDIATELY.
Dated : Lackawanna, New York, October 7, 3968.

A PPRO V ED :
. MARK L. BALEN,

M ark: L. B alent, M ayor.

' ZONING ORDINANCE AMENDMENT
CITY OF LACKAWANNA.

W HEREAS, the present sewer facilities, including the treatment facilities 
of the City of Lackawanna have been and are overtaxed, and

W HEREAS, the said facilities are in  need of improvement, repair and 
maintenance because of such use, mandated requirements recently enacted bv 
the state authorities, and

WHEREAS, the said need has principally occurred because of the growth 
of the City of Lackawanna, demand by the Buffalo Sewer Authority to pro 
vide its own sewer facilities, besides compliance with additional state require- 
merits, and 1

(Footnote continued on following page)



problem. On October 14, 1968, a public hearing was held 
on. the two ordinances. On October 21, 1968, the City 
Council read and voted final passage of both ordinances 
and they were signed into law by defendant, Mayor Mark 
L. Balen. The subdivision moratorium ordinance imposed 
a ban only on the approval of new subdivisions and had 
no effect on Majestic Acres, which was only half com­
plete at the time of the passage of the ordinance. In ad­
dition, this ordinance did not have any effect on single- 
family residential construction proceeding in the third 
ward outside of subdivisions.

At the City Council meeting of October 24, 1968, the 
Council passed an ordinance expressing its desire to hire 
a sewer consultant to make a comprehensive study of the

(Footnote continued from preceding page)
W HEREAS, because of such circumstances, raw sewage is being discharged 

instead of being properly treated, thereby creating further menace to the 
public health, safety and welfare, and

W HEREAS, it appears provident and imperative that new housing, par­
ticularly new subdivisions, be restrained until these sewer facilities of the said 
City of Lackawanna are improved so as to meet present and future needs safely, 
thereby maintaining the health, welfare and safety of the public, therefore, 
BE IT ENACTED by the City Council of the City of Lackawanna, New 
York as follows :

SECTION 1. That a state of emergency exists in the City of Lackawanna 
with respect to this problem which makes it imperative that this Ordinance 
shall become effective forthwith.

SECTION 2. No approval of new subdivisions will be granted until this 
state of emergency terminates in the best interest of the city.

SECTION 3. All existing ordinances, orders, rules and regulations of the 
City of Lackawanna are hereby repealed insofar as they may be inconsistent 
with the provisions of this Ordinance.

SECTION 4. It is the intention of the City Council that each separate 
provision of this Ordinance shall be deemed independently of all other provi­
sions herein, and

SECTION S. It is further the intention of the City Council that if any 
provisions of this Ordinance be declared invalid, all other provisions, shall 
remain valid and enforceable.

Dated: Lackawanna, New York, October 7, 1968.
APPROVED:

MARK L. BALEN,
M a rk  L. Ba l e n , M ayor..



81

City’s sewer problems. The City has not undertaken a 
study as yet pursuant to this resolution calling for a com­
prehensive sewer study.

At the October 24 meeting, the Council approved a reso­
lution setting forth findings of fact and reasons for the 
adoption of the ordinances in the Martin Road area. Some 
of the reasons given were : (1) The sewage problems in 
the entire City, and in particular the third ward area; (2) 
That a recreation study recommended this area for a park 
and recreation; (3) That the Army Corps of Engineers 
lias declared the area just south of this area as a flood 
land area; and (4) Because the Master Plan has earmark­
ed this area for a recreation purpose.

On February 25, 1969 (after this lawsuit was com­
menced), the Council passed a resolution rescinding both 
the rezoning and the moratorium ordinance dated October 
7, 1968. This rescission was to take effect immediately.

MAYOR’S REFUSAL TO SIGN SANITARY 5 FORM
Almost one year after the commencement of this law­

suit and approximately eight months after the City Coun­
cil rescinded the October, 1968 ordinances, Mr. "Will Gib­
son, attorney for K. P. II. A., C. P. C. P. 0., and the two 
individual plaintiffs, sent a letter to John W. Condon, at­
torney for the defendants, requesting that a Sanitary 5 
form and certain, plans to construct a waste disposal sys­
tem for the proposed subdivision be submitted to Mayor 
Balen for approval. On November 13, 1969, the Sanitary 
5 form was forwarded to the mayor. The next day, all of 
the parties appeared in this court, and the court directed 
the Corporation Counsel for the City and defendants’ 
ccmnsel to advise the court within two weeks of the action 
taken by the mayor in regard to the Sanitary 5 form.



When Mayor Balen received the Sanitary 5 form, he 
contacted Mr. Vito Caruso from the consulting engineer­
ing firm of Nussbaumer & Clark and requested an opinion 
regarding the advisability of signing this Sanitary 5 form. 
Nussbaumer & Clark is a consulting engineering firm 
which has supervised sewer work for the City of Lacka­
wanna for many years, and Mr. Caruso has been active 
in recent years in the Dorrance Avenue sewer project 
where the Lackawanna sewers are being disconnected from 
the Buffalo Sewer Authority. Although his knowledge of 
other sewers in Lackawanna was limited, within a week 
Mr. Caruso conducted a visual inspection of the Martin 
Road sewer situation, reviewed the Sanitary 5 form and 
the supporting data, and finally concluded that the sewers 
were inadequate for a new subdivision. He was not asked, 
nor did he consider, whether or not there was an alterna­
tive to an outright refusal to sign the Sanitary 5 form. He 
reported to the mayor that the sewers were inadequate 
for a new subdivision. The mayor refused to sign the 
Sanitary 5 form and this fact was reported in open court 
on November 28, 1969.

During this period, another incident occurred which 
highlighted the fact that a “ sewer crisis” was not the 
real reason for opposition to the K. P. H. A. undertaking. 
For a number of reasons, the Buffalo Baseball team was 
forced to terminate use of its Buffalo stadium. Because 
of this, during the fall of 1969 the Baseball Club was seek­
ing a stadium to use for about five years, at which time it 
expected to be able to play in a new stadium.

Mayor Balen proposed to the Baseball Club that the 
Lackawanna Stadium on South Park Avenue be expanded, 
at a cost of about $500,000, to provide a temporary base­
ball park. This stadium is located about five and a half



83

blocks from the K. P. H. A. site in the third ward and is 
part of the Lackawanna sewer system. The revamped 
stadium would accommodate about 7,000 additional pa­
trons, but no thought was given to sewer problems or was 
Mr. Caruso ever consulted about it.

Mayor Balen made a special trip to New York to con­
sult a bonding attorney. However, nothing came of these 
efforts since the proposal was defeated at a public refer­
endum.

THE DISCRIMINATORY ACTIONS OF THE DE­
FENDANTS VIOLATED PLAINTIFFS’ CONSTI­

TUTIONAL AND STATUTORY RIGHTS.
The plaintiffs seek relief in this case by asserting causes 

of action under the Fourteenth Amendment (the Equal 
Protection Clause), the Civil Rights Act (42 U. S. C. 
§1983), and the Fair Housing Act of 1968 (42 U. S. C. 
§ 3601 et seq.). The cause of action created under each of 
these statutes or the amendment prescribes discriminatory 
conduct because of race or color.

The Fair Housing Act of 1968 covers discriminatory 
conduct in fair housing situations by both public and pri­
vate alleged wrongdoers. However, the nature of the dis­
crimination prescribed under the Fair Housing Act is 
limited in that it does not include discrimination based on 
poverty. Under Section 1983 and the Fourteenth Amend­
ment, the full range of discriminatory conduct is pro­
scribed if, and only if, that action is taken by a party 
acting under color of state law. In other words, private 
discrimination is not actionable under Section 1983 and. 
the Fourteenth Amendment.



Because this lawsuit deals specifically with an allega­
tion of discrimination in housing based on race or color 
by wrongdoers acting under color of state law, the dif­
ferences between the various sections and amendment are 
unimportant.

As long ago as Buchanan v. Warloy, 245 U. S. 60 (1917), 
the Supreme Court pointed out that the Fourteenth 
Amendment does not allow conduct which results in 
racially discriminatory treatment, even though the pur­
pose of the municipal action was to preserve the public 
peace and public welfare, a goal which represented a valid 
exercise of the police power. Furthermore, a long line of 
cases in the Supreme Court dealing with equal protection 
of the laws has held that racial discrimination may be es­
tablished either by proof of purpose or effect. See Tick 
Wo v. Hopkins, 118 IT. S. 356 (1886) and, more recently, 
Reitman v. Mulkey, 387 IT. S. 369 (1967), and Hunter v. 
Erickson, 393 IT. S. 385 (1969). “ It is of no consolation 
to an individual denied the equal protection of the laws 
that it was done in good faith.” Burton v. Wilmington 
Parking Authority, 365 IT. S. 715, 725 (1961). Require­
ments which appear neutral on their face and theoretical­
ly apply to everyone, but have the inevitable effect of 
tying present rights to the discriminatory pattern of the 
past, are unlawful. United States v. Louisiana, 380 IT. Si 
145 (1965). The official act may not place a special bur­
den upon the minority. Gaston County v. United States, 
395 IT. S. 285 (1969).

Judicial inquiry into the purpose or effect of govern­
mental action is not limited to the moment that that action 
occurs. Not only must the “ immediate objective” of gov­
ernmental action be considered, but the “ historical con­
text” and “ultimate effect” of such action must he con­



85

sidered as well. Reitman v. Mulkey, supra. The inquiry 
must further assess the “ reality” of the “ law’s impact” 
and consider the “ background” against which state ac­
tion operates to determine that reality. Hunter v. Erick­
son, supra. Therefore, relevant to this inquiry are either 
past or prospective governmental actions which form a 
part of the background.

The history of Lackawanna is that of a racially sepa­
rate community. Only a handful of blacks ever lived in 
the second or third ward. The increased white popula­
tion of the third ward is due substantially to the recently 
constructed subdivisions which were approved by the City 
over the last ten years. These approvals were granted in 
spite of the City’s awareness of the sewer problems and 
the desire of its citizens for increased park and recreation 
areas. Private discriminatory conduct was well known to 
City officials. The attempts by Negroes to move into the 
third ward are accompanied by instances of evasion and 
refusal by contractors, home owners, realtors, and subdi­
viders. In 1968, a more dramatic example of the private 
sentiment against the proposed K. P. IT. A. subdivision is 
the. petition sent to Bishop McNulty.

The actions of the Planning and Development Board 
during 1968, taken independently and in conjunction with 
the Zoning Board of Appeals, and the consequent action 
of the City Council in October, 1968, indicate to the court 
that the Lackawanna City officials attempted to respond 
to the discriminatory sentiments of the community.

One example of this racially motivated response is the 
Planning and Development Board’s demand that the area 
north of Ridge Road in the first, ward be used partly for 
residential purposes. The prior Planning and Develop­
ment Board followed the recommendation of the planner



not to use this area for residences. However, in spite of 
the detailed warnings of Mr. Kane, the new hoard re­
versed the former position and determined that this area 
he used for residential purposes, preferably apartments. 
The result of this decision would he to accelerate the 
pattern of segregation. Of all of the alternatives pre­
sented to the Planning Board, the City chose the one which 
would minimize the first ward Negroes’ opportunity to 
move to the better conditions of the third ward.

The evidence shows that the actions of the Planning and 
Development Board were taken specifically to block the 
K. P. H. A. subdivision. It was not until rumors began 
about the K. P. H. A. subdivision that the Planning and 
Development Board discussed the “ sewer crisis” and the 
flood report, but their discussion and resolution of these 
problems show that they did not attempt to consider the 
facts developed in these reports in a rational manner but 
instead used both the “ sewer crisis” and the flood report 
as clubs to defeat the K. P. H. A. proposal. At the same 
time, they were adopting the resolution which would keep 
population density levels low in the third ward—the best 
place to live—and high in the first—the worst place to 
live.

Discriminatory reasons guided the action of the City 
Council in its enactment of the October ordinances. I t is 
true that the Council cited a number of reasons for their 
passage, but the main reasons given—sewer needs, park 
and recreation needs, and flooding problems—were clearly 
wrong on the facts and, under the circumstances, more ra­
tionalization. For example, a finding that the park study 
specifically recommended this area rezoned as a park and 
recreation area is false. The fact is that the report of the 
N, R. & P. A. recommended only the area south of Martin



Road and west of the proposed McKinley extension as a 
park area. The finding of fact that the original and the 
present Master Plan both earmarked the area known as 
“ south of Martin Road” as a recreation area is false. The 
fact is that both plans and the supporting documents 
recommended the area south of Martin Road both for 
recreational and for residential purposes. The Master 
Plans and supporting reports recommended the area where 
K.P.H.A. wants to build a subdivision for a residential 
purpose.

Further, the mayor’s action in refusing to sign the Sani­
tary 5 form, when considered in the “historical context,” 
can only lead to the determination that his refusal was 
based upon discrimination. Admittedly, Mr. Caruso’s 
knowledge of the sewers in this area was limited; his inspec­
tion was cursory, and no alternatives to refusal were 
requested or given.

Therefore, considering all of the evidence and especially 
the actions of the City in 1968 and 1969 in their historical 
context, the court concludes that the plaintiffs have met 
their burden of showing a denial of equal protection of the 
law. Affirmative acts were taken under color of law to 
inhibit the plaintiffs’ constitutional and statutory rights.
Justification.

The defendants urge that the sewer crisis and the urgent 
need for park space justify the actions they took with 
respect to the proposed subdivision. However, the Supreme 
Court has held that, when the effect of a state action is to 
place upon a minority group a special burden or classifi­
cation, the defendant has a heavy burden of justifying such 
action. Tt must show that it is necessary to serve a legiti­
mate governmental interest. McLauc/hlin r. Florida. .379

87 i



8 8

U. S. 184, 195 (1964). It must also be shown that the gov­
ernmental interest is compelling. Shapiro v. Thompson, 
394 IT. S. 618, 633-4 (1969).

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

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

In support of their position that the City Council was 
justified in rezoning the K. P. H. A. area for park and 
recreation space, the defendants called five recreation 
experts. The court affords little weight to their testimony. 
One of them, Mr. Noren, who participated with Mr. Buech- 
ner in the preparation of the N. R. & P. A. report and con­
curred in it, attempted to make a different site recommen­
dation at trial. The other four were never consulted dur­
ing 1968 before the enactment of the ordinance. Their sole 
function was to testify at trial. In each case ,their recom­
mendation was made considering only the park needs of 
the community without taking into account the other fac­
tors which Mr. Kane considered and discussed with Mr. 
Buechner.

The sewer problem did not justify the action taken by 
the Council in enacting the ordinance, or by the mayor in



89

refusing to sign the Sanitary 5 form. There is no question 
that preserving the environment and healthful living condi­
tions in the community hy providing adequate sewage col­
lection is a legitimate governmental function, but the 
enactment of the subdivision moratorium was not neces­
sary or compelling and, in fact, could not solve the sewer 
problem.

Neither the Planning and Development Board nor the 
Council discussed alternatives to the subdivision morator­
ium so that the sewer system could be improved and the 
subdivision completed. For the most part, the board and 
Council ignored the recommendations made by the City’s 
own exeprt, except for his suggestion to separate the roof 
leaders from the sanitary sewers, which work the City 
began only after the state threatened to cut off financial 
assistance. They ignored other suggestions completely.

Many third ward and other residents of the City have 
complained about the sewers for at least the last ten years. 
Nevertheless, during this period, the City continued to 
issue subdivision and building permits without facing up to 
a satisfactory solution to the sewer problem. Defendants' 
lack of attention not only deprived the plaintiffs of an 
opportunity for housing, but all Lackawanna residents of 
an efficient sewer system.

DEFENDANTS HAD A DUTY TO CONSIDER AND 
AFFIRMATIVELY PLAN FOR THE PROTECTION 

OF PLAINTIFFS’ HOTTSTNO RIGHTS.
This court has already held that the facts warrant a 

finding that the acts of the defendants were a wilful con­
trivance to deprive plaintiffs of their housing rights. That 
alone is sufficient to warrant relief to the plaintiffs, but it 
must be noted that some discrimination resulted from



90

thoughtlessness or failure on the part of City officials to 
consider or plan for the housing needs of all Lackawanna 
residents. The defendants may not escape responsibility 
by ignoring community needs or by failing to consider 
alternative solutions to city-wide problems.

If the plaintiffs are deprived of equal housing oppor­
tunity, the result is the same whether caused by open, pur­
poseful conduct, by a subtle scheme, or by sheer neglect or 
thoughtlessness. Adopting the language of Hobson v. 
Hansen, 269 F. Supp. 401, 497 (1967), the Second Circuit, 
in Norwalk CORE v. Norwalk Development, 395 F. 2d 920, 
931 (2d Cir. 1968), held that

“ ‘Equal protection of the laws’ means more than 
merely the absence of governmental action designed to 
discriminate; . . . ‘we now firmly recognize that the 
arbitrary quality of thoughtlessness can be as disas­
trous and unfair to private rights and the public 
interest as the perversity of a willful scheme.’ ”

In Southern Alameda Spanish Speaking Organization v. 
City of Union City, 424 F. 2d 291, 295, 296 (9th Cir. 1970), 
the court held:

“ . . . [I]t may well be, as matter of law, that it is 
the responsibility of a city and its planning officials to 
see that the city’s plan as initiated or as it develops 
accommodates the needs of its low-income families, 
who usually—if not always—are members of minority 
groups.”

The City officials in Lackawanna have the obligation to 
consider and plan for all of the citizens in the community. 
They have an obligation not only to plan for the sewer 
needs of the third ward citizens, but also the housing prob­
lem of the first. Industrial encroachment into former resi­
dential areas in the first ward which displaced people from 
their homes calls for as much attention as sewer backups 
in the third ward.



91

Miscellaneous.
The court rejects the argument of the defendants that 

plaintiffs, C. P. C. P. 0., K. P. H. A., the Diocese of Buffalo, 
and the individual plaintiffs, do not have standing to bring 
this suit. All plaintiffs have a personal stake in the out­
come of this controversy. Baker v. Carr, 369 U. S. 186 
(1962).

The court disregards as irrelevant the testimony of Peter 
Vinolus, attorney for the Lackawanna School Board, that 
the board is now considering acquiring the land to the 
west of the K. P. H. A. site for school purposes.

REMEDY.
Because defendants’ conduct has denied plaintiffs equal 

protection of the laws and the Constitution of the United 
States, and also the rights guaranteed by Title VIII of the 
Civil Rights Act of 1968, plaintiffs are entitled to relief. 
“We bear in mind that the court has not merely the power 
but the duty to render a decree which will so far as possible 
eliminate the discriminatory effects of the past as well as 
bar like discrimination in the future.” Louisiana v. United 
States , supra, 154. Therefore, it is the order of this court:

1. That, within ten days after plaintiffs deliver the Sani­
tary 5 form with accompanying documents to the City of 
Lackawanna, it be executed by an appropriate official and 
forwarded to the Erie County Department of Health for 
future action.

2. That, if the Sanitary 5 form is disapproved by the 
Erie County Department of Health, defendants shall imme­
diately take whatever action is necessary to provide ade­
quate sewage service to the K, P. H. A. subdivision.



92

8. That defendants be enjoined from initiating steps to 
condemn, appropriate or otherwise acquire the Kennedy 
Park Subdivision site for nse as park and recreation.

4. That defendants be enjoined from using any of the 
City’s municipal powers regarding land use to prevent or 
interfere with the construction of Kennedy Park Sub­
division.

5. That defendants affirmatively take whatever steps 
are necessary to allow the Kennedy Park Subdivision to 
begin construction.

6. That defendants be enjoined from issuing building 
permits for any construction in the second and third wards 
which will contribute additional sanitary sewage to the 
municipal system until Kennedy Park Subdivision has been 
granted permission to tap into the sewer system by the 
appropriate authority.

7. That defendants report to the court, the United 
States and the private plaintiffs what steps the City has 
taken to allow the connection of Kennedy Park Subdivision 
into the municipal sewer system; what problems they have 
encountered; and what they are doing about those prob­
lems. That, if appropriate and necessary, the court shall 
set a timetable for such reports.

8. That this court retain jurisdiction over this matter 
until Kennedy Park Homes Subdivision is completed.

9. That this court will defer consideration of the ques­
tion of damage until a later date, to be fixed by order of 
the court.



The order of this court shall take effect immediately upon 
filing and service upon the aittorney for the defendants. 
No stay of this judgment will be granted by this court pur­
suant to Rule 9(a) of the Federal Rules of Appellate 
Procedure.

So ordered.

JOHN T. CURTIN,
J ohn T. Curtin ,
United States District Judge.

DATED : August 13, 1970.