Warth v. Selden Reply Brief for Petitioners

    In The

Supreme (Eourt of tfje Untteii &tatra

ROBERT W ARTH , et al.

VS.

IRA SELDIN, et al.

Petitioners,

Respondents.

On Writ of Certiorari to the United States 
Court of Appeals for the Second Circuit

REPLY BRIEF OF PETITIONERS

EM M ELYN  LOGAN-BALDW IN, ESQ.
510 Powers Building 
Rochester, New York 14614 
Tel: (716) 232-2292

DAAN BRAVEM AN , ESQ.
M onroe County Legal Assistance Corporation —  

Greater Upstate Law Project 
80 West Main Street 
Rochester, New York 14614 
Tel: (716) 454-6500

SANFORD LIEBSCHUTZ, ESQ.
Liebschutz, Rosenbloom & Samloff 
101 Powers Building 
Rochester, New York 14614

M ICH AEL NELSON, ESQ.
20 W eldon Street 
Rochester, New York 14611
Attorneys for Petitioners

Dated: March 7, 1975

Daily Record Corporation 
Rochester, New York

(948) Spaulding Law Printing 
Syracuse, New York



TABLE OF CONTENTS

ARGU M EN T .............................................................................  1

POINT I —  Low income minority persons are the im­
mediate victims of defendants’ racially discriminatory 
and exclusionary practices and policies and, as such, 
have standing to seek judicial review of those practices 
and policies.................................................................................. 6

POINT II —  Property owners of the City of Rochester 
who suffer from a decaying city environment and ever 
spiralling taxes as a result of defendants’ racially ex­
clusive zoning ordinance have standing to seek judicial 
review of the ordinance and its enforcement.................... 13

POINT III —  The organizational plaintiffs and their 
members suffer loss of associational rights and 
economic injury as a direct result of defendants’ 
racially discriminatory acts and, therefore, have 
standing to seek judicial review of those acts.......................  15

1. Metro Act o f Rochester, Inc.........................................  15

2. Housing Council in the Monroe County Area, Inc. . 16

3. Rochester Home Builders Association, Inc.................... 18

CONCLUSION ..............................................................................20

Page



CITATIONS

CASES:

Association o f Data Processing Service Organizations,
Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827 (1970) 3, 12, 13

Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691 (1962) ..........  3 ,12

Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832 (1970) .3, 10, 13

Brown v. Board o f Education, 347 U.S. 483, 74 S.Ct. 
6 8 6 (1 9 5 4 )............................................................................  9

Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16 (1917) . . .  9

Crow v. Brown, 332 F.Supp 382 (N.D.Ga. 1971), aff’d 
457 F.2d 788 (5th Cir. 1 9 7 2 ) ..........................................  10

Dailey v. City o f Lawton, 425 F.2d 1037 (10th Cir.
1 9 7 0 ) .....................................................................................  10

Doremus v. Board of Education, 342 U.S. 429, 72 S.Ct. 
3 9 4 (1 9 5 2 )............................................................................  13

Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942 (1 9 6 8 )............12 ,14

Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597 
(1923) ..................................................................................  13

Gornillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125 
(1960) ............................................................................ 3 ,7 , 9, 11

Gautreaux v. Chicago Housing Authority, 503 F.2d 930 
(7th Cir. 1974) .................................................................... 12

Hart v. Community School Board o f Brooklyn, 383 
F.Supp. 699 (E.D. N.Y. 1974), appeal dismissed, 497 
F.2d 1027 (2nd Cir. 1974) ..............................................  12

Jenkins v. M cKeithen, 395 U.S. 411, 89 S.Ct. 1843 
(1969) ................................................................................ 1 ,6 , 12

Page



Louisiana v. United States, 380 U.S. 145, 85 S.Ct. 817 
(1965) ..................................................................................  12

N.A.A.C.P. v. Alabama, 357 U.S. 449, 78 S.Ct. 1163 
(1958) ..................................................................................  15

N.A.A.C.P. v. Button, 371 U.S. 415, 83 S.Ct. 328 
(1963) ..................................................................................  15

Norwood v. Harrison, 413 U.S. 455, 93 S.Ct. 2804 
(1973) .............................................................^ ................. 3

Park View Heights Corp. v. City o f Black Jack, 467 F.2d 
1208, (8th Cir. 1 9 7 2 ) ...................................................  9 ,1 0

Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361
(1972) ................................................................................... 15

Super Tire Engineering Co. v. McCorkle, 416 U.S. 115,
94 S.Ct. 1 6 9 4 (1 9 7 4 )...................................................  12

Sivann v. Charlotte-Mecklenburg Board o f Education,
402 U.S. 1,91 S.Ct. 1 2 6 7 (1 9 7 1 )..............................  12

Trafficante v. Metropolitan Life Insurance Co., 409 U.S.
205, 93 S.Ct. 364(1972) ................................................. 16

United States v. Students Challenging Regulatory Agency 
Procedures, 412 U.S. 669, 93 S.Ct. 2405 (1973) 
............................................................................. 3 ,9 ,1 0 ,1 3 ,1 4 ,1 5

Village o f  Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 
1536(1974) ........................................................................  3

Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391 (1967) .. 12

OTHER M ATER IA LS:

Davis, Standing: Taxpayers and Others, 35 U. Chi. L.
Rev. 601 (1 9 6 8 ) ...........................................................  9

Ill

Page



In The

Supreme (Court of tlje Hnitel) States
O ctober Term , 1974

No. 73-2024

ROBERT W ARTH , et al.

vs.

IRA SELDIN, et al.

Petitioners,

Respondents.

On Writ o f  Certiorari to the United States 
Court o f  Appeals for the Second Circuit

R E PLY B R IE F OF PETITION ERS

ARGUMENT

This is a racial discrimination case. Plaintiffs’ allegations of 
racial discrimination by the defendants are uncontroverted in 
the pleadings.1 As a matter of law, in the posture of this case, 
plaintiffs’ allegations of race discrimination must be accepted as 
true. Jenkins v. M cKeithen , 395 U.S. 411, 89 S.Ct. 1843 
(1969).

The defendants have enacted and are administering a zoning 
ordinance for the Town of Penfield that on its face and as ad­
ministered is calculated to exclude minorities from residing in

1 Defendants filed only a conclusory attorney affidavit in support of their motion to 
dismiss.



2

the town. Efforts of the defendants have been quite successful. 
According to United States Census figures, the population of the 
Town of Penfield in 1960 was 12,601 with 23 of that total being 
minority persons; the population of the Town of Penfield in 
1964 was 17,337, with 22 of that total being minority persons; 
the population of the Town of Penfield in 1970 was 23,782, 
with 60 of that total being minority persons. (A. 470, 583 —  
588). The total minority population of the Town of Penfield 
over this ten year period has always been less than 1 /2  of 1 %.

The root cause for the inflexible zoning ordinance and its 
rigid application is, as the Metropolitan Housing Committee 
observed about Penfield and other towns in the Rochester area, 
racial prejudice. (A. 276, 277) The Town of Penfield has even 
officially examined its exclusion of minority, low-income persons 
and concluded that it must do its part in building its “ fair share”  
of housing for minority, low-income persons; it has recognized 
that the only way to end the exclusion is by fundamental 
amendment and change of its rigid zoning ordinance and its 
rigid application of that ordinance. (A. 487, 500, 501, 503 —  
506, 508, 509)

In a study entitled Report of Penfield Housing Task Force on 
Moderate Income Housing and published by the Town of 
Penfield, June 5, 1972, the Town of Penfield calculated that its 
“ fair share”  of housing for minority, low-income persons, would 
be 2,000 units in the 1970 —  1980 period. (A. 502) The only 
feasible w ay to provide for this construction is by amendment of 
the zoning ordinance.

“ Penfield’s Zoning Ordinance does not presently 
provide for this variety of housing styles and sizes. They 
could be accommodated by granting variances to the 
Ordinance; however, the frequent granting of variances 
is generally considered contrary to good zoning and 
planning practices. Instead we recommend that the 
Penfield Town Board adopt changes to the present 
Zoning Ordinance necessary to accommodate the broad



3

variety of housing styles, sizes, and densities earlier 
recommended. These changes should be adopted as 
early as possible.”  (A. 508, 509)

This is a case of zoning to segregate by race that the Court 
alluded to in Village o f  Belle Terre v. Boraas, 416 U.S. 1, 6, 
94 S.Ct. 1536, 1539 (1974). This case is not, therefore, as 
defendants urge, simply an ordinary zoning case which should 
lead this Court to accept the ordinance at face value because 
zoning “ . . . is a subject uniquely of local concern and 
resolution” . (Respondents’ Brief at 45.)

This Court has not tolerated and does not tolerate govern­
mental participation in racial discrimination in any degree, 
directly or indirectly, because the Constitution forbids it. 
Norwood v. Harrison, 413 U.S. 455, 93 S.Ct. 2804 (1973) and 
Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125 (1960).

The Court did not adopt in Baker v. Carr, 369 U.S. 186, 82 
S.Ct. 691 (1962), as defendants suggest (Respondents’ Brief at 
4 —  9) a special, practical test of standing for civil rights cases 
requiring the Court’s projecting a decision on the merits in 
considering a question of standing. A plaintiff in a civil rights 
case is certainly not subject to a more rigorous standing 
requirement than a plaintiff in any other case. See Association o f  
Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 
150, 90 S.Ct. 827 (1970); Barlow v. Collins, 397 U.S. 159, 90 
S.Ct. 832 (1970); United States v. Students Challenging 
Regulatory Agency Procedures, 412 U.S. 669, 93 S.Ct. 2405 
(1973).

Faced with the defendants’ rigid zoning ordinance and its 
inflexible application, the question then becomes what can be 
done to prevent further discrimination. Everything that could 
possibly have been done has been tried —  all to no avail. Each 
minority plaintiff has actively sought housing in the Town of 
Penfield; there is none available. (A. 362 —  435) Penfield 
Better Homes, a member of plaintiff Housing Council in the



4

Monroe County Area Inc. located land, retained a builder, 
general contractor, architect and zoning authority in an effort to 
gain approval from the Town of Penfield for construction of 
Federal Housing Administration assisted housing. The 
defendants rejected the proposal as inconsistent with the neigh­
borhood. (A. 629 —  633)

The Penfield Planned Unit Development was hailed by some 
as a possible opening in the town for the relaxation of the rigid, 
exclusionary ordinance. (A. 621, 622) However, when builder- 
members of the intervenor plaintiff Rochester Home Builders 
Association sought to submit proposals under the Planned Unit 
Development concept, the defendants amended the ordinance to 
insure that the general exclusion of minorities would be 
maintained. (A. 623 —  642) Because of the defendants ad­
ditional restrictions on these proposed developments, the 
developments have either been abandoned, delayed indefinitely, 
or transformed into exclusive housing.

Associations of persons including plaintiff Metro Act of 
Rochester, Inc. (Metro-Act) and Housing Council in the 
Monroe County Area, Inc. (Housing Council) have decried the 
continued efforts of the defendants to maintain their restrictive, 
exclusive zoning practices and have tried to persuade a different 
course. (A. 627 —  629) Yet the defendants proceeded to make 
their zoning ordinance more restrictive and have continued, 
project by project, to insure exclusive housing patterns. The 
defendants ignored the concrete suggestions of plaintiff Metro 
Act for changes in the ordinance. (A. 193 —  195) The Town of 
Penfield has acknowledged the exclusiveness of its ordinance (A. 
487 —  573) but its study remains unheeded.

In these circumstances, it is an anomaly indeed for the court 
below to have focused its decision on the lack of a housing start. 
Hi ere is no “ housing start”  in the Town of Penfield that 
preceded the institution of this lawsuit because, as plaintiffs 
allege, the defendants have thwarted every attempt to build



5

multiracial, low income housing. In fact, intervenor plaintiff 
Rochester Home Builders Association alleges that the defen­
dants threatened to cease any further co-operation with builders 
on the construction of exclusive housing in the Town of Penfield 
if this lawsuit were pursued. (A. 158, 159)

Frustrated at every juncture in efforts to end the exclusionary 
zoning of the defendants, those persons and organizations 
directly injured by the discrimination initiated this lawsuit. 
Those with the most at stake are the minority persons, Ortiz, 
Broadnax, Reyes, and Sinkler who are relegated to residing in 
inner city, ghetto environments of uncontrolled violence, 
declining municipal services and poor schools, for example. The 
City of Rochester property owners not only suffer from the 
declining city environment, but also have the pocketbook injury 
of paying ever increasing property taxes to buy city services as 
City of Rochester revenue bases are increasingly reduced by tax 
abated housing. Finally, members of the organizational 
plaintiffs are directly injured by the defendants’ racial 
discrimination insofar as they have been deprived of the benefits 
of interracial associations, the loss of business opportunities in 
the construction of housing, and profits derived from those 
business opportunities. Defendants argue the lack of plaintiffs’ 
standing only by ignoring the substantiated allegations of direct 
injury to each plaintiff in the record.



6

POINT I

Low incom e m inority persons are the immediate victims 
o f  defendants' racially discrim inatory and exclusionary 
practices and policies and, as such, have standing to seek 
judicia l review o f  those practices and policies.

Plaintiffs Ortiz, Broadnax, Reyes and Sinkler are black or 
Spanish-surnamed persons of low or moderate income who have 
sought housing in Penfield, but have been excluded because of 
their race and economic status. As a direct result of defendants’ 
racially discriminatory and exclusionary zoning practices and 
policies, these individuals are confined to the decaying inner city 
of Rochester, New York, which consists of substandard housing, 
inadequate community services (A. 416 —  417, 425 —  426, 
442), uncontrolled violence (A. 442 —  447), and inferior 
education (A. 433, 454)

Initially, defendants contest the standing of these plaintiffs on 
the ground that they exerted only “ casual efforts”  in searching 
for housing in Penfield (Respondents’ Brief at 11). Plaintiffs, of 
course, challenge any unsupported assertion that their search for 
decent housing was “ casual.”  More importantly, defendants’ 
concentration on the extent of plaintiffs' efforts indicates that 
defendants have lost sight of the procedural posture of this case. 
This matter was not tried, but rather was decided on the basis of 
a motion to dismiss, pursuant to Rule 12 of the Federal Rules of 
Civil Procedure. In these circumstances, the material allegations 
of the complaint and supporting affidavits must be accepted as 
true. Jenkins v. McKeithen, 395 U.S. 411, 89 S.Ct. 1843 
(1969).2 These allegations reveal that the plaintiffs sought to 
escape the inner city environment and find housing in Penfield

^Defendants suggest that their Rule 12(b) motion was converted into a Rule 56 
summary judgment motion because the District Court decided on the basis of 
affidavits, as well as the complaint. Even assuming that this conversion process 
occurred, the District Court was required to accept plaintiffs’ allegations as true 
since defendants submitted only an attorney’s affidavit. See note 1, supra.



7

(A. 370, 417-418, 428, 453), but were denied because of their 
race and economic level. If plaintiffs are allowed the opportunity 
to proceed to trial, they will sustain the truth of these allegations. 
However, “ [a]t this stage of the litigation we are not concerned 
with the truth of the allegations, that is, the ability of petitioners 
to sustain their allegations by proof. The sole question is 
whether the allegations entitle them to make good on their claim 
that they are being denied rights under the United States 
Constitution.”  Gomillion v. Lightfoot, 364 U.S. 339, 341, 81 
S.Ct. 125, 127 (1960). Here, plaintiffs’ allegations of 
discrimination entitle them to make good their claims that they 
are being denied rights under the Constitution and laws of the 
United States.

Defendants also assert that plaintiffs are simply suffering 
“ injury by supposition”  and that the “ record is devoid of 
events.”  (Respondents’ Brief at 15) Once again, defendants are 
ignoring the record and proceeding as if this case had been tried 
and the factual issues resolved in their favor.

The record is replete with instances of real concrete injury 
flowing directly from defendants’ exclusion of multiracial low 
and moderate income housing. Plaintiff Ortiz was unable to find 
such housing near his job in Penfield and was forced to travel 
forty-two miles to work. (A. 375 —  377) The burdensome 
commuting problems and expenses are neither conjectural nor 
hypothetical. Similarly, defendants’ exclusion of low income 
housing and denial of equal housing opportunities to low in­
come, minority persons inflict injury upon Ms. Broadnax and 
her family. As a direct result, the Broadnax family is unable to 
escape from the deplorable housing conditions in the inner city 
and must live in a home with “ leaks in the roof, bad wiring, 
roach infestation, rat and mice infestation, crumbling house 
foundation, broken front door, broken hot water heater, etc.”  
(A. 410) Plaintiffs Sinkler and Reyes describe the similar hard­
ships which they and their families are forced to endure as a



8

result of their inability to secure housing in Penfield. Such injury 
is hardly “ injury by supposition.”

Additionally, plaintiffs allege that their children are suffering 
real harm because they must attend the inferior Rochester 
schools, rather than the highly rated Penfield schools. (A. 453 
—  455) The public schools in Rochester are so inadequate that 
Ms. Sinkler transferred her child to a parochial school even 
though she must pay the additional expenses of tuition and 
registration fee. (A. 488)

Finally, plaintiffs are suffering real, concrete injury in that 
they are the victims of defendants’ racially discriminatory 
policies and practices. Defendants' mere passing reference to the 
racial discrimination claim (Respondents' Brief at 14 n.3) 
cannot obscure the uncontradicted allegations that the purpose 
and effect of defendants' zoning practices and policies are to 
exclude black and other minority individuals. Plaintiffs allege in 
paragraph fourteen of the complaint:

“ That the statute as enacted and/or administered by 
the defendants, has as its purpose and in fact, effects and 
propagates exclusionary zoning in said Town with 
respect to excluding moderate and low income multiple 
unit housing and further tends to exclude low income 
and moderate income and non-white residency in said 
town . . (Emphasis added) (A. 15)

Moreover, plaintiffs Ortiz, Broadnax, Reyes, and Sinkler 
specifically state in their affidavits that they have been excluded 
because of their race. (A. 363, 421, 434, 453) As plaintiff Ortiz 
states, “ . . . my claim is that I, as a citizen of Spanish /Puerto 
Rican extraction am being denied the right and/or opportunity 
to reside in the Town of Penfield because of my race.
(A. 363) The experts who have examined the ordinance agree 
that the law is “ basically an inflexible control mechanism which 
has the effect of producing economically and racially stratified 
housing arrangements without apparent regard for the housing



9

needs either of its own citizenry or for the citizenry within the 
larger metropolitan community.”  (A. 944) (Emphasis added)

The complaint and affidavits allege a case of racial 
discrimination, as real and concrete as if defendants had passed 
an ordinance expressly excluding black and Spanish-sumamed 
persons from Penfield. Cf. Gomillion v. Lightfoot, supra; 
Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16 (1917). The 
injury to these individuals is the very injury suffered by the 
plaintiffs in Brown v. Board o f Education, 347 U.S. 483, 74 
S.Ct. 686 (1954). There, the Court held that to separate in­
dividuals “ solely because of their race generates a feeling of 
inferiority as to their status in the community that may affect 
their hearts and minds in a way unlikely ever to be undone.”  Id. 
at 494, 74 S.Ct. at 691.

In these circumstances, it is simply a callous indifference to 
the facts to state that these plaintiffs merely are suffering “ injury 
by supposition.”  Here, as in Park View Heights Corp. v. City o f  
Black Jack, 467 F.2d 1208, 1216 (8th Cir. 1972), “ [t]he in­
dividual plaintiffs have presented a strong case for consideration 
at this time. They allege that they are subject to the serious 
consequences of segregation in housing and education, as well as 
the economic consequences of decreasing access to jobs due to 
their inability to escape from the inner city.”  The injury inflicted 
upon these plaintiffs is certainly more substantial than the mere 
trifle which has served as the basis for standing in other cases. 
See United States v. Students Challenging Regulatory Agency 
Procedures (SCRAP), 412 U.S. 669, 689 n.14, 93 S.Ct. 2405, 
2417 n.14 (1973); Davis, Standing: Taxpayers and Others, 35 
U.Chi. L. Rev. 601, 613 (1968).

Defendants, however, suggest that, even if plaintiffs are 
injured, the injury does not flow from Penfield’s zoning or­
dinance and defendants’ implementation of that law. Such a 
notion ignores the direct line of causation between defendants’ 
racially discriminatory and exclusionary practices and policies



10

and plaintiffs’ hardships. As a direct result of defendants’ ac­
tions, plaintiffs are unable to buy or rent homes in Penfield and 
are, thus, forced to (1) reside in substandard houses in a 
decaying inner city environment; (2) send their children to 
inferior schools; (3) forego employment opportunities; and (4) 
suffer the stigma resulting from racial discrimination. 
Manifestly, the line of causation is far more direct than in either 
United States v. SCRAP, supra, or Barlow v. Collins, 397 U.S. 
159, 90 S.Ct. 832 (1970) where this Court held that the 
standing requirement had been satisfied. If defendants, here, 
believe that plaintiffs’ allegations are untrue they should have 
“ demonstrated to the District Court that the allegations were 
sham and raised no genuine issue of fact. We cannot say on these 
pleadings that [plaintiffs] could not prove their allegations, 
which, if proved, would place them squarely among those 
persons injured in fact . . . and entitled . . .  to seek judicial 
review.’ ’ United States v. SCRAP, supra at 689, 690, 93 S.Ct. 
at 2417.

It is further asserted that plaintiffs lack standing because 
there is no project proposal for low and moderate income 
housing. (Respondents’ Brief at 25) Indeed, on this ground, 
defendants attempt to distinguish a number of lower court 
decisions which have held that potential residents of multiracial, 
low and moderate-income housing have standing to challenge 
practices and policies designed to exclude them. See, e.g., Park 
View Heights Corporation v. City o f  Black Jack, supra; Crow v. 
Brown, 457 F.2d 788 (5th Cir. 1972), affirming 332 F.Supp. 
382 (N .D .G a. 1971); Dailey v. City of Lawton, 425 F.2d 1037 
(10th Cir. 1970).

Contrary to any suggestion by defendants, there have been 
project proposals for low and moderate income housing. (A. 629 
—  642) These proposals, including the “ Highland Circle 
Project’ ’ (A. 629 —  632), have been denied in accordance with 
defendants’ practices and policies of excluding low-income 
minority persons, such as plaintiffs. It is alleged that defendants



11

. . frustrated attempts at the building of and 
prevented opportunities for low and moderate income 
housing units in the Town of Penfield, amended the 
PUD ordinance so as to make more difficult the 
availability of low and moderate income housing 
through planned unit development in Penfield and have 
failed or refused to re-zone as might be required for the 
construction of low and moderate income housing in the 
Town of Penfield. Such policies and practices have the 
effect o f specifically excluding low and moderate income 
persons, blacks, Spanish-Am ericans, and other  
minorities from living in the Town o f Penfield. ”  (A. 641 
—  642) (Emphasis added)

Moreover, the uncontradicted allegations of the Rochester 
Home Builders Association reveal that defendants have fur­
thered their exclusionary and discriminatory plan by 1) refusing 
to grant variances and building permits; 2) failing to modify 
various zoning requirements, including minimum lot size, 
population density, use density and floor space; and 3) refusing 
to grant necessary tax abatements. (A. 154 —  155) These are 
the “ decisive facts in this case, which at this stage must be taken 
as proved. . . .”  Gomillion v. Lightfoot, supra at 346, 81 S.Ct. at 
130. In these circumstances, the lack of a present project 
proposal is simply testimony to the success of defendants’ 
racially discriminatory and exclusionary actions.

Defendants also would have this Court deny standing on the 
ground that the low income, minority plaintiffs do not have an 
interest in property. (Respondents’ Brief at 25) Of course, 
plaintiffs lack an interest in property in Penfield. The very 
gravaman of their complaint is that defendants deny plaintiffs 
the opportunity to acquire an interest in land because of their 
race and economic status.

The absence of a specific project proposal or interest in land 
does not negate the controlling fact that plaintiffs are suffering 
actual injury resulting directly from defendants’ illegal actions. 
It is this injury which assures that plaintiffs will present the



12

dispute in an “ adversary context and in a form historically 
viewed as capable of judicial resolution.”  Flast v. Cohen, 392 
U.S. 83, 101, 88 S.Ct. 1942, 1953 (1968). See also Association 
of Data Processing Service Organizations, Inc. v. Camp, 397 
U.S. 150, 90 S.Ct. 827 (1970); Baker v. Carr, 369 U.S. 186, 82 
S.Ct. 691 (1962).

Nor does the absence of a project proposal or interest in land 
impede the District Court’s ability to grant effective relief. 
Initially, it should be noted that the “ concept of standing focuses 
on the party seeking relief, rather than on the precise nature of 
the relief sought.”  Jen kins v. McKeithen, supra at 423, 89 S.Ct. 
at 1850. Moreover, even assuming that the nature of the relief is 
relevant to the inquiry here, it is manifest that the District Court 
could grant effective relief. The requested declaratory3 and 
injunctive relief could remove the barriers to construction of 
multiracial, low and moderate income housing and restrain 
defendants from engaging in the types of actions which, thus far, 
have prevented the construction of such housing. Additionally, if 
plaintiffs sustain their allegations of racial discrimination, they 
will be entitled to relief which requires affirmative steps to cure 
the continuing effects of the past discrimination. See, e.g., 
Swann v. Charlotte-Mecklenburg Board o f Education, 402 U.S. 
1, 91 S.Ct. 1267 (1971); Louisiana v. United States, 380 U.S. 
145, 85 S.Ct. 817 (1965). Such relief could order defendants to 
devise a comprehensive plan to remedy the effects of their 
racially discriminatory practices and policies. See, e.g., 
Gautreaux v. Chicago Housing Authority, 503 F.2d 930 (7th 
Cir. 1974); Hartv. Community School Board o f Brooklyn, 383 
F.Supp. 699 (E.D.N.Y. 1974), appeal dismissed, 497 F.2d 
1027 (2d Cir. 1974).

3The District Court has a “  ‘duty to decide the appropriateness and the merits of 
the declaratory request irrespective of its conclusion as to the propriety of the 
issuance of the injunction.' "  Super Tire Engineering Company v. McCorkle, 416  
U.S. 115, 1 2 1 ,9 4  S.Ct. 1 6 9 4 ,1 6 9 8  (1974) (quoting Zwickler v. Koota, 389 U.S. 
241, 254, 88 S.Ct. 391, 399 (1967).



13

Accordingly, it is submitted that plaintiffs Broadnax, Ortiz, 
Reyes and Sinkler have standing to seek judicial review of 
defendants’ racially discriminatory and exclusionary practices 
and policies.

POINT II

Property owners o f  the City o f  R ochester who suffer 
from  a decaying city environm ent and ever spiralling taxes 
as a result o f  defendants’ racially exclusive zoning or­
dinance have standing to seek judicia l review o f  the or ­
dinance and its enforcem ent.

The test for determining whether plaintiffs Vinkey, Reichert, 
Warth, Harris and Ortiz have standing to sue the defendants is 
the same test that this Court applies in determining whether the 
other plaintiffs have standing —  that is, whether they allege 
injury in fact and whether the interest . . sought to be 
protected by the complainant is arguably within the zone of 
interests to be protected or regulated by the statute or con­
stitutional guarantee in question.”  Association o f Data 
Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 
153, 90 S.Ct. 827, 830 (1970); see also Barlow v. Collins, 397 
U.S. 159, 90 S.Ct. 832 (1970); United States v. Students 
Challenging Regulatory Agency Procedures, 412 U.S. 669, 93 
S.Ct. 2405 (1973). These plaintiffs are not litigating merely 
because they happen to be taxpayers of the City of Rochester. 
Thus, defendants’ analysis of the taxpayer standing cases is 
inapposite. See, e.g., Doremus v. Board of Education, 342 U.S. 
429, 72 S.Ct. 394 (1952); Frothingham v. Mellon, 262 U.S. 
447, 43 S.Ct. 597 (1923). (Respondents’ Brief at 26-33).

Plaintiffs Vinkey, Reichert, Warth, Harris and Ortiz sue 
because the exclusionary and discriminatory acts of the 
defendants are directly affecting them and causing them 
economic injury. One such injury is the actual increase in the 
property taxes which these plaintiffs are forced to pay as a result



14

of defendants’ policies and practices. These plaintiffs allege that 
their property taxes have increased dramatically over the years 
because defendants’ refusal to permit construction of low and 
moderate income housing forces the City of Rochester to provide 
such housing, much of which is tax abated. (A. 5, 6) Penfield 
has no tax abated housing properties. (A. 471) While the 
defendants have recognized their obligation to assume their 
“ fair share”  of providing such housing, (A. 502) they have yet to 
do so.

The poeketbook injury to these plaintiffs, however, is only a 
part of the injury. As long as the defendants are allowed to 
continue their exclusionary and discriminatory practices, the 
concentration of low and moderate housing in the City of 
Rochester will continue to produce a “ density crush” ; law 
enforcement authorities are generally less able to cope with 
problems; the city environment will continue to decline (A. 
4 8 3 )4

The plaintiffs in this case, like the plaintiffs in United States 
v. Students Challenging Regulatory Procedures, supra at 690, 
93 S.Ct. at 2417, are entitled to their day in court. Certainly the 
plaintiffs must prove their claims upon trial. However, the only 
question now is whether the plaintiffs have alleged injury. 
Plaintiffs submit that the economic and environmental injury 
which they are forced to endure is sufficient to insure that the 
issues are presented in an adversary context and in a form 
capable of judicial resolution. Flast v. Cohen, 392 U.S. 83, 101, 
88 S.Ct. 1942, 1953 (1968).

4it is difficult to understand how defendants can assert (Respondents' Brief at 
32) that plaintiffs have changed their position with respect to the standing of 
these plaintiffs. Plaintiffs have always asserted that they are property owners 
and taxpayers in describing their status.



15

POINT III

The organizational plaintiffs and their m em bers suffer 
loss o f  associational rights and econom ic injury as a direct 
result o f  defendants’ racially discrim inatory acts and, 
therefore, have standing to seek judicia l review o f  those 
acts.

When a defendant engages in a course of conduct which 
causes injury to an organization or its members, the organization 
may sue in its own right and on behalf of its injured members. 
United States v. Students Challenging Regulatory Agency 
Procedures (SCRAP),  412 U.S. 669, 93 S.Ct. 2405 (1973); 
Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361 (1972); 
N.A.A.C.P. v. Button, 371 U.S. 415, 83 S.Ct. 328 (1963); 
N.A.A.C.P. v. Alabama, 357 U.S. 449, 78 S.Ct. 1163 (1958). 
An organization is its members, the members are the 
organization. Harm to organization members is harm to the 
organization and vice-versa. This court in the cases noted above 
has found standing for organizations and their members 
regardless of whether the emphasis has been placed on harm to 
the organization or harm to its members. Thus, there is no real 
basis in law for defendants’ suggestion (Respondents’ Brief at 
34 and 35) that the standing of the organizational plaintiffs in 
this lawsuit is somehow imperfect because the organizations 
themselves do not make claim of violation of rights vital to their 
existence but must instead base any legal right to standing in 
this lawsuit on that which they can claim “ derivatively”  through 
their members.

1. M etro A ct o f  R ochester, Inc.

Contrary to defendants’ suggestion (Respondents’ Brief at 
35, 36) the interest and involvement of Metro A ct5 and its

5The fact that Metro Act undertakes other activities than housing programs does 
not, as defendants suggest, (Respondents’ Brief at 35) render it any less able to 
challenge defendants’ discrimination. The question is whether the acts of the 
defendants injure Metro Act and/or its members.



16

members in efforts to end exclusionary housing patterns in the 
Rochester area have been continual, vital and effective. (A. ISO- 
195) Metro Act and its members formulated and submitted 
plans for the construction of low, moderate income housing in 
the City of Rochester; the City responded favorably to those 
suggestions. Metro Act and its members were instrumental in 
the formulation of the Housing Council in the Monroe County 
Area, Inc. Metro Act and its members have been instrumental in 
causing the undertaking of comprehensive studies of housing 
problems in the Rochester area and the formulation of planned 
solutions to those problems. Detailed and concrete proposals 
were made by Metro Act and its members to the Town of 
Penfield for the correction of its exclusionary zoning but to no 
avail.

By no fair reading of the record in this case can Metro Act be 
described as having merely an interest in housing problems.6 
Defendants seem to complain (Respondents’ Brief at 38) that 
Metro Act should have made its Penfield resident member, Ann 
M cNabb, a plaintiff. However, the very purpose of an 
organization or an association as a plaintiff is litigating on behalf 
of the organization and its members. When Metro Act is 
plaintiff, its 350 separate members need not be plaintiffs as 
well.

2. H ousing Council In the M onroe County Aren, Inc.

The Housing Council in the Monroe County Area, Inc. 
(Housing Council) has been thwarted in efforts to accomplish its 
purpose by the discriminatory acts of the defendants. Housing

^Nor is it fair for defendants to suggest (Respondents’ Brief at 38) that Metro Act 
first raised associational right claims and standing of its Penfield members on 
appeal. The complaint and affidavits in opposition to the motion to dismiss were, 
of course, a part of the record before the District Court. In fact, there was sub­
mission of plaintiffs’ papers to the District Court in this case prior to this Court’s 
decision in Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205, 93 
S.Ct. 364 (1972).



17

Council has, like Metro Act, been involved in analyzing the 
exclusionary housing patterns of Rochester communities, in­
cluding the Town of Penfield, and formulating plans to solve 
those problems. (A. 170-176)

The membership of Housing Council has been directly 
damaged by the defendants’ refusal to change its exclusionary 
zoning ordinance. The numerous minority members of Housing 
Council, like minority plaintiffs in this lawsuit, are being ex­
cluded from residing in Penfield. (A. 175) These persons suffer 
daily from the effects of confinement to a decaying inner city 
environment.

The experience of Penfield Better Homes is illustrative of the 
deep involvement of Housing Council members in efforts to 
increase the availability of mutiracial, low and moderate income 
housing in Penfield. (A. 849-859) Contrary to defendants’ 
assertion (Respondents’ Brief at 41), the Penfield Better Homes 
housing proposal was concrete and specific. A fifteen acre site in 
Penfield had been selected as well as a builder, general con­
tractor, architect and housing consultant. Penfield Better 
Homes obtained a soil review, traffic survey and a legal opinion 
for the town to overcome any objections the town would have to 
the project. (A. 860 —  880) Notwithstanding, the defendants 
denied the re-zoning application of Penfield Better Homes 
because the proposed townhouse construction . . would 
constitute an inappropriate use of this land and would not be 
consonant with existing character of the neighborhood . . . ”  (A. 
881, 882)

Defendants suggest (Respondents’ Brief at 42) that Penfield 
Better Homes might have challenged the denial of application in 
New York State courts. And indeed that might be true.7 But it

^However, the excessive cost, as well as time necessary to litigate such question on 
a case by case basis would be most difficult for a non-profit group to sustain even 
if it could retain its land option long enough and, far more difficult than for the 
private builder who will rarely gamble on such economic loss.



18

does not follow that Penfield Better Homes as a member of an 
organization and along with other plaintiffs which have been 
injured by the discriminatory acts of the defendants cannot 
assert in federal court that these acts violate the Constitution 
and laws of the United States.

3. R och ester  H om e Builders Association, Inc.

The Rochester Home Builders Association, Inc. (Rochester 
Home Builders), a trade association broadly representative of its 
members engaged in activities designed to foster and promote 
the housing industry and adequate housing for all members of 
the community (A. 146), has been injured by the acts of the 
defendants’ exclusion of multiracial, low and moderate income 
housing.** Likewise, Rochester Home Builders members who 
have constructed over 80 % of the private housing in Penfield in 
the last fifteen years and who complain that the defendants have 
subjected them to the same discriminatory treatment as the 
other plaintiffs (A. 144 —  147) have standing to complain of the 
exclusionary zoning ordinance and its enforcement.* 9

Defendants refused to grant members of Rochester Home 
Builders variances, permits, etc. to enable construction of multi­
racial, low and moderate income housing. (A. 141, 142; 154 —  
156) Additionally, defendants have even “ . . . attempted to

8A suggestion by defendants (Respondents’ Brief at 43) that Rochester Home 
Builders lacks the status to represent its members because it has not alleged 
previously appearing on their behalf is inappropriate. Rochester Home Builders 
has the requisite statutory authority, Section 202, New York Not-For-Profit 
Corporation Law. It has in fact previously appeared but its standing in this 
action is not dependent on past activity or the lack of it.

9Contrary to the assertion of defendants (Respondents’ Brief at 43, footnote 17), 
the standing of Rochester Home Builders is sufficient to sustain its interest and 
position in this case even if all the other plaintiffs’ cases were dismissed. 
Although not reached by the court below, the District Court’s conclusion that it 
could not grant intervention because of the delay and prejudice to the ad­
judication of the rights of the original parties is clearly not sustained in the 
record.



19

coerce . . .”  (A. 158) members of Rochester Home Builders 
from bringing this lawsuit and have threatened members of 
Rochester Home Builders that if the lawsuit were brought 
Rochester Home Builders “ . . . would be prevented from doing 
business in the Town of Penfield and/or would be given great 
difficulty in obtaining necessary approvals, cooperation and/or 
appropriate treatment by government officials of said town, 
which would thus prevent them from carrying out their ordinary 
and necessary business in due course in said town” . (A. 159)

It is alleged that Rochester Home Builders have tried to 
construct multiracial, low and moderate income housing10 in 
the Town of Penfield and have been prevented by the 
discriminatory acts of the defendants. There is no support 
whatsoever for defendants’ assertion (Respondents’ Brief at 43) 
that Rochester Home Builders do not allege that any of its 
members desire to construct or are prepared to construct multi­
racial, low and moderate income housing in Penfield.

The defendants further claim that the Rochester Home 
Builders have failed to plead “ concrete specifics”  (Respondents’ 
Brief at 44). Again, in the present posture of the lawsuit, 
plaintiffs’ allegations are accepted on their face. Plaintiffs allege 
that all efforts of builders to construct multiracial, low and 
moderate income housing have been frustrated by the defen­
dants as part of their policy and practice to exclude minority 
residents. (A. 623 —  642)

At time of trial, proof will be presented of the specific acts of 
defendants' denying Rochester Home Builders permits, 
variances, etc. and thereby preventing construction of multi­
racial, low and moderate income housing and of Rochester

J^Low and moderate income housing is defined as housing which sells for under 
$20 ,000  per unit and rents for under $175 per unit. Low and moderate income 
families are those having incomes between $5,500 and $11 ,000 per year. (A. 
492, 4 9 3 ,9 2 9 , 930)



20

Home Builders’ interest and willingness to proceed with such 
projects. However, if the defendants are allowed to continue in 
their course of conduct, it can hardly be expected that Rochester 
Home Builders will propose further projects knowing in advance 
they would have no opportunity of acceptance by the town.

CONCLUSION

Each plaintiff has standing to sue because each is injured in 
fact by defendants’ racially discriminatory and exclusionary 
practices and policies. Accordingly, the judgment of the Second 
Circuit should be reversed and the case remanded for further 
proceedings.

Respectfully submitted,

EM M ELYN  LOGAN-BALDW IN, ESQ.
510 Powers Building 
Rochester, New York 14614 
Tel: (716) 232-2292

DAAN BRAVEM AN , ESQ.
M onroe County Legal Assistance Corporation —  

Greater Upstate Law Project 
80 W est Main Street 
Rochester, New York 14614 
Tel: (716) 454-6500

SANFORD LIEBSCHUTZ, ESQ.
Liebschutz, Rosenbloom & Samloff 
101 Powers Building 
Rochester, New York 14614

M ICH AEL NELSON, ESQ.
20 W eldon Street 
Rochester, New York 14611

Attorneys for Petitioners

Dated: March 7, 1975