Warth v. Selden Brief Amicus Curiae

    In t h e

g’upratte (Eourt of tljt' Itnitcii States
O ctober  T e r m , 1974

No. 73-2024

R obert  W a r t h , et al.,

vs.
Petitioners,

I ra  S e l d in , et al.

ON WRIT OF CERTIORARI TO THE UNITED STATES 

COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF FOR THE N.A.A.C.P. LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC., AS AMICUS CURIAE

J a c k  G r ee n b e r g  

J a m e s  M. N a b r it , III 
C h a r l e s  S t e p h e n  R a l st o n  

N o r m a n  J . C h a c h k i n  

10 Columbus Circle 
New York, N. Y. 10019

Attorneys for the NAACP Legal 
Defense and Educational Fund, 
Inc., as Amicus Curiae



TABLE OF CONTENTS

Interest of Amiens Curiae .............................................. 1

I. The Denial of Standing to Challenge Exclusion­
ary Zoning to Excluded Minorities Would Frus­
trate Achievement of Fair Housing Throughout 
the United States ...................................................... 3

II. Individual Black and Spanish-Surnamed Plain­
tiffs, Housing Council in the Monroe County 
Area, and Rochester Home Builders Association 
Have Standing to Challenge the Penfield Zoning

PAGE

Ordinance ...................................................................  6

C o n c l u s io n  .........................................................................  12

Cases:

Allee v. Medrano, ------  U.S. —  40 L.Ed.2d 566
(1974) .................................. ........................................ 6,9,11

Barrows v. Jackson, 346 U.S. 249 (1953) ......................4,10
Bates v. Little Rock, 361 U.S. 516 (1960) ...................... 9
Berman v. Parker, 348 U.S. 26 (1954) ........ ..................  8
Blackshear Residents Organ, v. H.A. of City of Austin,

347 F. Supp. 1138 (W.D. Texas 1971) ....................... 10
Buchanan v. Warley, 245 U.S. 60 (1917) ...................3,4,10

California Bankers Assn. v. Shultz, 416 U.S. 21 (1974) 6
Cypress v. Newport News Gf. & N. Hosp. Ass’n, 375 

F.2d 648 (5th Cir. 1967).................................................. 8

Doe v. Bolton, 410 U.S. 179 (1973) ..............................  6

Eisenstadt v. Baird, 405 U.S. 438 (1972) ......................  4



11

Euclid v. Ambler Realty Co., 272 U.S. 365 (1926) .......  8

Flast v. Cohen, 392 U.S. 83 (1968) ..................................  6

Gomillion v. Lightfoot, 364 U.S. 339 (1960) ................... 5

Harmon v. Tyler, 273 U.S. 668 (1927) ....................... . 4
Hawkins v. Town of Shaw, 437 F.2d 1286 (5th Cir. 

1971) affirmed en banc, 461 F.2d 1171 (5th Cir. 1972) 5

James v. Valtierra, 402 U.S. 137 (1971) ......................... 8
Joint Anti-Fascist Refugee Comm. v. McGrath, 341 

U.S. 123 (1951) ..........................................................  9

Kennedy Park Homes Assoc, v. City of Lackawanna,
436 F.2d 108 (2d Cir. 1970) cert, denied 401 U.S.
1010 (1971) ...................................................................... 10

Lane v. Wilson, 307 U.S. 269 (1939) .......................... ...... 3
Linda R.S. v. Richard D., 410 U.S. 614 (1973) ........... 6
Louisiana v. NAACP, 366 U.S. 293 (1961) ................... 9

Milliken y . Bradley, --------  U.S. ---------, 41 L.Ed.2d 1069
(1974) ...............................................................................  5

Moose Lodge v. Irvis, 407 U.S. 163 (1972) ................... 4

NAACP v. Alabama ex rel. Patterson, 357 U.S. 449
(1958) ...............................................................................  9

NAACP v. Button, 371 U.S. 415 (1963) .... ...................... 9,11
Norwalk CORE v. Norwalk Redevelopment Agency,

395 F.2d 920 (2nd Cir. 1968) .......................................... 10

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

PAGE

10



Ill

Pierce v. Society of Sisters, 268 U.S. 510 (1925) ........... 9

Reitman v. Mulkey, 387 U.S. 369 (1967) ....................... 5
Richmond v. Deans, 281 U.S. 704 (1930) ......................  4
Roe v. Wade, 410 U.S. 113 (1972) ..................................  4
Rogers v. Panl, 382 U.S. 198 (1965) ...................... ........  9

Sierra Club v. Morton, 405 U.S. 727 (1972) ................... 9
Sisters of Prov. of St. Mary Woods v. City of Evanston,

335 F. Supp. 396 (N.D. 111. 1971) ....................   10
Smith x. Texas, 311 U.S. 128 (1940) ...........   3
Southern Alameda Span. Sp. Organ, v. City of Union

City, 424 F.2d 291 (9th Cir. 1970) ..............................  10
Sullivan v. Little Hunting Park, 396 U.S. 229 (1969) .... 10

Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205 
(1972) ...............................................................................6,10

United Farm Workers of Florida Housing Prop, Inc.
v. City of Delray Beach, 493 F.2d 799 (5th Cir. 1974) 10

United States v. SCRAP, 412 U.S. 669 (1974) ....6, 7, 9,10,11

Village of Belle Terre v. Boraas, 416 U.S. 1 (1974) ..... 4, 8

Yick Wo v. Hopkins, 118 U.S. 356 (1886) ......................  3

Statutes:

42 U.S.C. § 3601 .................................................................  2, 4

The Housing and Community Development Act of 1974,
Pub. L. No. 93-383 ... ...................................................... 4

Other Authorities:

Equal Opportunity in Suburbia 29-35 (July 1974) ....... 5

PAGE



I n  t h e

g'ltpn'uu' Ghmrt of tin' Unitrii States
O ctober  T e r m , 1974 

No. 73-2024

R obert  W a r t h , et al.,

vs.
Petitioners,

I r a  S e l d in , et al.

ON WRIT OF CERTIORARI TO THE UNITED STATES 

COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF FOR THE N.A.A.C.P. LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC., AS AMICUS CURIAE

Interest of Amicus Curiae*

The N.A.A.C.P. Legal Defense and Educational Fund, 
Inc., is a non-profit corporation, incorporated under the 
laws of the State of New York in 1939. It was formed to 
assist Negroes to secure their constitutional rights by the 
prosecution of lawsuits. Its charter declares that its pur­
poses include rendering legal aid gratuitously to black 
persons suffering injustice by reason of race who are un­
able, on account of poverty, to employ legal counsel on

# Letters of consent from counsel to the filing of this brief for 
the petitioners and the respondents have been filed with the Clerk 
of the Court.



2

tlieir own behalf. The charter was approved by a New York 
court, authorizing the organization to serve as a legal aid 
society. The N.A.A.C.P. Legal Defense and Educational 
Fund, Inc. is independent of other organizations and is sup­
ported by contributions from the public. For many years its 
attorneys have represented parties in this Court and the 
lower courts, and it has participated as amicus curiae in 
this Court and other courts, in cases involving many facets 
of the law.

The Legal Defense Fund receives many requests for as­
sistance in the enforcement of fair housing laws, and par­
ticipates in many cases in both federal and state forums 
to advance the national policy of “ fair housing through­
out the United States,” 42 U.S.C. § 3601. Our experience 
indicates that discrimination in housing transactions neces­
sarily causes injury to a wide circle of persons, including 
potential renters or purchasers, other residents of the 
building or neighborhood, builders, and owners. Adequate 
enforcement of fair housing requires that a commensu- 
rately broad range of persons and organizations be en­
titled to commence administrative and judicial proceedings. 
The Legal Defense Fund is therefore interested that re­
quirements in fair housing cases not be more onerous than 
in other areas of law, lest victims of racial exclusionary 
zoning and other discriminatory housing practices be de­
prived of access to the judicial forum. Moreover, in our 
experience, fair housing cases can only be successfully 
litigated with advance preparation and the ability to de­
vote the time, effort and expense necessary to prosecute 
complaints. Often “the only effective adversary” , Bar- 
rows v. Jackson, 346 U.S. 249, 259 (1953), with sufficient 
resources and independence to challenge exclusionary zon­
ing may be a membership association suing in behalf of 
injured members.



3

I.
The Denial of Standing to Challenge Exclusionary 

Zoning to Excluded Minorities Would Frustrate Achieve­
ment of Fair Housing Throughout the United States.

As this Court has said, the Constitution “nullifies so­
phisticated as well as simple minded modes of discrimina­
tion.” Lane v. Wilson, 307 U.S. 269, 275 (1939).1 At issue 
in this case is whether a town can escape the scrutiny of 
a federal court that would result if it enacted an ordinance 
that explicitly excluded blacks and other minorities,2 by 
enacting and administering- a zoning scheme racially neu­
tral on its face that nevertheless had the same purpose 
and effect.3 The Court of Appeals in this case, by erect­
ing rules of standing more stringent than those that 
govern in other areas of the law, has effectively insulated 
the Town of Penfield from a challenge to its policies.

The Second Circuit held, in essence, that poor black and 
other minority persons who allege that they are prevented 
by the policies of the defendants from renting or purchas­
ing housing cannot maintain this action; rather, their only 
apparent remedy is to wait and hope that other persons, 
specifically potential home-builders, will bring suit. Com­
pletely overlooked by the Court below is the fact that the 
interests and goals of a construction firm may be quite 
different from those of a potential black renter or pur­
chaser. Also overlooked is the fact that in another case 
where a home-builder was the sole plaintiff there might be a 
question as to his standing in an action seeking to over­
turn a decision not to grant him a permit, to rely solely

1 See also, Smith v. Texas, 311 U.S. 128, 132 (1940).
2 Buchanan v. Warley, 245 U.S. 60 (1917).
3 See, Yick Wo v. Hopkins, 118 U.S. 356 (1886).



4

on the ground that the reason for the denial was to deprive 
third parties, i.e., blacks and minorities, of their constitu­
tional rights. Compare, Moose Lodge v. Irvis, 407 U.S. 
163 (1972), with, Eisenstadt v. Baird, 405 U.S. 438 (1972) 
and Barrows v. Jackson, 346 U.S. 249 (1953). Thus, the 
net result of the decision might he that no one could chal­
lenge policies that clearly violate the Constitution, a result 
that this Court has often refused to sanction. See, e.g., Roe 
v. Wade, 410 U.S. 113,125 (1972).

Amicus urges that the decision of the court below, 
therefore, is inconsistent with the goal of enforcing the 
national policy of “ fair housing throughout the United 
States,” 42 U.S.C. § 3601,4 by making it impossible for those 
ultimately injured by exclusionary zoning policies to chal­
lenge them. The discriminatory impact of racial zoning has 
been recognized at least since Buchanan v. Warley, 245 
U.S. 60 (1917). See also, Harmon v. Tyler, 273 U.S. 668 
(1927); Richmond v. Deans, 281 U.S. 704 (1930); Village of 
Belle Terre v. Boraas, 416 U.S. 1, 6 (1974). Notwithstand­
ing applicable Reconstruction amendments and laws, and 
long-standing judicial precedent, exclusionary zoning prac­
tices such as lot size, restrictions on multi-family struc­
tures, density limitations, and discriminatory grant of vari­
ances persist as barriers to racial integration of metro­
politan areas across the nation. Indeed, the United States 
Commission on Civil Rights has recently documented that 
exclusionary zoning by local authorities is a principal factor 
in maintaining dual housing markets in metropolitan areas

4 The Housing and Community Development Act of 1974, Pub. 
L. No. 93-383, also affirms as an aim, “ the reduction of the isola­
tion of income groups within communities and geographical areas 
and the promotion of an increase in the diversity and vitality of 
neighborhoods through the spatial deconcentration of housing op­
portunities for persons of lower income and the neutralization of 
deteriorating or deteriorated neighborhoods to attract persons of 
higher income.”



5

in which the black and the poor are restricted to decaying 
central cities surrounded by closed white, affluent suburban 
communities. Equal Opportunity in Suburbia, 29-35 (July 
1974).5

Racial zoning is a particularly pernicious form of hous­
ing discrimination in that its effect is wholesale exclusion.

This is not a case as simple as the one where a man 
with a bicycle or a car or a stock certificate or even a 
log cabin asserts the right to sell to whomsoever he 
please, excluding all others whether they be Negro, 
Chinese, Japanese, Russians, Catholics, Baptist, or 
those with blue eyes. We deal here with a problem in 
the realm of zoning . . . whereby a neighborhood is 
kept “white” or “ Caucasian” as the dominant interests 
desire. Reitman v. Mulkey, 387 U.S. 369, 381 (1967) 
(Justice Douglas concurring).

Exclusionary zoning can also have the effect of facilitat­
ing discrimination in the provision of public schools, see,
e.g., Milliken v. Bradley,------U .S .------- , 41 L.Ed. 2d 1069
(1974), municipal services, see e.g., Hawkins v. Town of 
Shaw, 437 F.2d 1286 (5th Cir. 1971), affirmed en banc, 461 
F.2d 1171 (5th Cir. 1972), and in the exercise of other civil 
rights, see, e.g., Gomillion v. Lightfoot, 364 U.S. 339 
(1960), by efficiently creating racially distinct neighbor­
hoods and communities. It would be anomalous, there­
fore, if those persons with the greatest interest in the 
eradication of exclusionary policies cannot challenge them 
because of artificially strict standing requirements.

5 In the Rochester metropolitan area, for instance, the black 
population in 1970 was 49,647 in Rochester and 2,571, in suburban 
towns, as compared to total population figures of 296,233 in 
Rochester and 415,684 in the suburbs. The black population of 
suburban Penfield is 60 out of a total population of 23,782. A p­
pendix on Appeal 228-29. [hereinafter “Appeal App.” ]



6

Individual Black and Spanish-Surnamed Plaintiffs, 
Housing Council in the Monroe County Area, and Roch­
ester Home Builders Association Have Standing to Chal­
lenge the Penfield Zoning Ordinance.

The issue in this case is whether any of the plaintiffs 
or the intervenor has made allegations adequate to confer 
standing to challenge the Penfield zoning ordinance as 
enacted and administered.6 In affirming the motion to dis­
miss, the Second Circuit disregraded express allegations 
and averments in the record of “ threatened or actual in­
jury resulting from the putatively illegal action,” Linda 
R.S. v. Richard D., 410 U.S. 614, 617 (1973), that estab­
lish “ a logical nexus between the status asserted and the 
claim sought to be adjudicated,” Flast v. Cohen, 392 U.S. 
83, 102 (1968). The rule is that, “ federal plaintiffs must 
allege some threatened or actual injury resulting from 
the putatively illegal action before a federal court may 
assume jurisdiction.” (emphasis added) Linda R.S. v. Rich­
ard D., supra, 410 U.S. at 617.

The Second Circuit, however, misconstrued this stan­
dard and premised dismissal on the judgment that none 
of the individuals or associations “has suffered from any 
of the specific, overt acts alleged,” i.e. that the allega­
tions of injury were in fact untrue. In so deciding, the 
Court of Appeals failed to make the distinction explicitly 
recognized by this Court in Trafjicante v. Metropolitan 
Life Ins. Co., 409 U.S. 205, 209 (1972) and in United 
States v. SCRAP, 412 U.S. 669 (1974), between the al­

II.

6 Because standing is clear as to certain individuals and asso­
ciations, this amicus brief will not discuss the standing of all of 
them. See, Doe v. Bolton, 410 U.S. 179, 189 (1973); California 
Bankers Assn. v. Shultz, 416 U.S. 21, 44-45 (1974).



7

legations of the complaint and what may be proved in 
the trial on the merits.7

The complaint specifically alleges that the black and 
Spanish-snrnamed class action plaintiffs are deprived of 
fair housing opportunities in Penfield on account of race 
and poverty by the operation of the zoning ordinance. 
Looking at the allegations as a whole (rather than by 
each plaintiff separately, as did the court below), the 
minority plaintiffs seek to show that: (1) the exclusionary 
zoning scheme was adopted and administered to exclude 
minorities; (2) it in fact has succeeded in its purpose; 
(3) as part of this scheme permit requests for low-income 
multiple housing have been denied; (4) the named plain­
tiffs are black, Spanish-surnamed, low-income persons who 
wish to live in the town; and (5) they have been unable 
to do so because of the success of the exclusionary zoning 
scheme.8 If plaintiffs prevail on the merits, the black

7 “We deal here simply with the pleadings in which the appel­
lees alleged a specific and perceptible harm that distinguished them 
from other citizens who had not used the natural resources that 
were claimed to be affected. If, as the railroads now assert, these 
allegations were in fact untrue, then the appellants should have 
moved for summary judgment on the standing issue and demon­
strated to the District Court that the allegations were sham and 
raised no genuine issue of fact. We cannot say on these plead­
ings that the appellees could not prove their allegations which, if 
proved, would place them squarely among those persons injured 
in fact by the Commission’s action, and entitled under the clear 
import of Sierra Club to seek review.” United States v. SCRAP, 
412 U.S. at 689-90.

8 The complaint states:
FO U RTEEN TH : That the statute as enacted and/or admin­
istered 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 hous­
ing and further tends to exclude low income and moderate 
income and non-white residency in said Town and thereby 
deprives persons and has deprived persons including the 
plaintiffs Harris, Ortiz, Broadnax, Reyes and Sinkler of the



8

and Spanish-surnamed plaintiffs will personally benefit by 
achieving the same right to rent or purchase property in 
Penfield presently possessed by white persons, but denied 
the class of racial minorities by the present ordinance. 
See James v. Valtierra, 402 U.S. 137 (1971). Thus, here 
the individual minority-group plaintiffs have alleged a 
direct relationship between the correction of the injury 
suffered (exclusion from the town), and the relief sought 
(ending of the scheme of evclusionary zoning).9

same right to inherit, purchase, lease, sell and/or convey real 
property and to make and enforce contracts and to the full 
and equal benefit of all laws and proceedings for the security 
of persons and property as are enjoyed by persons presently 
living in said Town. Appeal App. at 9.

Similar allegations are made in paragraphs Sixteenth, Appeal 
App. at 9-10; Seventeenth, Appeal App. at 10-11; Eighteenth, 
Appeal App. at 11-12; Nineteenth, Appeal App. at 12-13; and 
Twentieth, Appeal App. at 13-14. More particularly, the com­
plaint alleges that Mr. Ortiz, a Puerto Rican, “ is denied certain 
rights by virtue of his race.” and that Mr. Ortiz “ is employed 
in the Town of Penfield, New York, but has been excluded from 
living near his employment as he would desire by virtue of the 
illegal, unconstitutional and exclusionary practices.” Appeal App. 
at 6. Mr. Ortiz subsequently filed an affidavit that avers in de­
tail the deprivation on account of race and poverty alleged, A p­
peal App. at 188-202. Affidavits were also submitted in behalf of 
similar allegations of injury to Ms. Broadnax, a black person, 
Appeal App. at 203-09; Ms. Reyes, a Puerto Rican, Appeal App. 
at 210-14; and Ms. Sinkler, a black person, Appeal App. at 215-23.

9 This Court, in other contexts, has noted that the effect of a 
zoning ordinance on certain property is at times indirect, with­
out suggesting any difficulty with standing. “ [A ] zoning ordi­
nance usually has an impact on the nature of the property which 
it regulates . . ., [even though] the precise impact on value may, 
at the threshold of litigation over validity not yet be known.” 
Belle Terre v. Boraas, supra, 416 U.S. at 9-10; Berman v. Parker, 
348 U.S. 26, 36 (1954) ; Euclid v. Ambler Realty Co., 272 U.S. 
365, 397 (1926). The effect of the Penfield zoning ordinance on 
certain excluded persons should be similarly treated.

Moreover, it has long been recognized that a black person need 
not be physically denied admission to segregated facilities before 
he may challenge racial discrimination. See, e.g., Cypress v. New­
port News G. & N. Hosp. Ass’n, 375 F.2d 648 (5th Cir. 1967).



9

The standing of these class action plaintiffs who seek to 
dismantle the existing dual housing market which excludes 
them from living in the Pentield suburb is exactly the stand­
ing possessed by school desegregation plaintiffs who seek to 
disestablish dual school systems. See, e.g., Rogers v. Paul, 
382 U.S. 198, 200 (1965). Indeed, allegations of less tradi­
tionally cognizable forms of personal injury have been held 
to confer standing adequate to survive a motion to dis­
miss. “Aesthetic and environmental well-being, like eco­
nomic well-being, are important ingredients of the quality 
of life in our society, and the fact that particular environ­
mental interests are shared by the many rather than the 
few does not make them less deserving o f legal protection 
through the judicial process.” Sierra Club v. Morton, 405 
U.S. 727, 734 (1972). The allegations of personal injury 
in United States v. SCRAP, 412 U.S. 669 (1974), although 
“far less direct and perceptible” than in Sierra Club were 
held adequate.

With regard to the organizational plaintiffs, this Court 
has held that, “ It is clear that an organization whose mem­
bers are injured may represent those members in a proceed­
ing for judicial review. See, e.g., NAACP  v. Rutton, 371 
U.S. 415, 428,” Sierra Club v. Morton, 405 U.S. 727, 739 
(1972).10 That associations may enforce rights in behalf 
of their members is a well established principle of standing 
law in civil rights litigation,11 and this Court has long

10 See also, United States v. SCRAP, 412 U.S. 669, 683-90
(1973) ; Allee v. Medrano, ------  U.S. ----- , 40 L.Ed. 2d 566, 582
n. 13, 588-89 (1974) ; Joint Anti-Fascist Refugee Comm. v. Mc­
Grath, 341 U.S. 123, 153-54 (1951) (Justice Frankfurter concur­
ring) ; Pierce v. Society of Sisters, 268 U.S. 510, 534-35 (1925).

11 See NAACP  v. Alabama ex rel. Patterson, 357 U.S. 449, 458- 
60 (1958); Rates v. Little Rock. 361 U.S. 516, 523 n. 9 (1960) ; 
Louisiana v. NAACP, 366 U.S. 293, 296 (1961); NAACP  v. But­
ton, 371 U.S. 415, 428 (1963).



10

recognized that the difficult task of enforcing fair housing 
guarantees in particular requires application of realistic 
standing requirements.12 Moreover, membership organiza­
tions have played a significant role in fair housing enforce­
ment in the lower federal courts.13

Housing Council in the Monroe County Area, an asso­
ciation of various groups concerned with fair housing in 
the Rochester metropolitan area, alleges that, “Housing 
Council’s claim in this action arose out of the same trans­
actions and occurrences, and raises the same questions of 
law and fact, as are already before this Court.” Appeal 
App. at 83. Housing Council, in the affidavit of its execu­
tive director filed with Motion and Notice of Motion, 
specifically avers that the Penfield zoning ordinance has 
resulted in injury to an identified member group.14 Simi­

12 jBuchanan v. Warley, 245 U.S. 60, 72-73 (1917); Barrows v. 
Jackson, 346 U.S. 249, 254-59 (1953); Sullivan v. Little Hunting 
Park, 396 U.S. 229, 237 (1969) ; Trafficante v. Metropolitan Life 
Ins. Co., 409 U.S. 205 (1972).

13 See, e.g., Norwalk CORE v. Norwalk Redevelopment Agency, 
395 F.2d 920 (2d Cir. 1968); Southern Alameda Span. Sp. Organ. 
v. City of Union City, 424 F.2d 291 (9th Cir. 1970) ; Kennedy 
Park Homes Assoc, v. City of Lackawanna, 436 F.2d 108 (2d Cir.
1970) , cert, denied, 401 U.S. 1010 (1971); Park View Heights 
Corp. v. City of Black Jack, 467 F.2d 1208 (8th Cir. 1972) ; 
United Farm Workers of Florida Housing Proj., Inc. v. City of 
Delray Beach, 493 F.2d 799 (5th Cir. 1974); Sisters of Prov. of 
St. Mary Woods v. Citŷ  of Evanston, 335 F. Supp. 396 (N.D. 111.
1971) ; Blackshear Residents Organ, v. H.A. of City of Austin, 
347 F. Supp. 1138 (W .D. Texas 1971).

14 Upon information and belief, at least one such [charter 
member] group, viz. Penfield Better Homes Corporation, is 
and has been actively attempting to develop moderate in­
come housing in the Town of Penfield, but has been stymied 
by its inability to secure the necessary approvals from the 
defendants in this action. Appeal App. at 91.

Similarly, the affidavit of Ann McNabb, a director of Penfield 
Better Homes, set forth actual terms of an application of Pen- 
field Better Homes to build “ a complex of cooperative housing



11

larly, intervenor Rochester Home Builders Association, a 
construction industry association, specifically alleges in its 
complaint that the Penfield zoning ordinance has injured 
its members by prohibiting them from “constructing and 
offering for sale or rental, housing to all segments of the 
community which require housing, particularly those per­
sons of low and moderate income.” Appeal App. at 80-81. 
Further, it is alleged that the members of the association, 
who have been responsible for constructing 80% of the 
private housing units in Penfield in the last 15 years, 
have been injured in the sum of $750,000 by reason of 
the challenged ordinance and its administration.

In short, the Housing Council and Rochester Home 
Builders alleged no less than did the NAACP in NAACP  
v. Button, supra, 371 U.S. at 428; Students Challenging 
Regulatory Agency Procedures, the Environmental De­
fense Fund, the National Parks and Conservation Asso­
ciation, and the Izaak Walton League of America in 
United States v. SCRAP, 412 IT.S. at 678-80; or the United 
Farm Workers Organizing Committee in Allee v. Medrano, 
supra, 40 L.Ed. 2d at 582 n. 13. Thus, the decision of the 
Court of Appeals denying them standing is in conflict 
with the decisions of this Court and should be reversed.

units which would be sold to persons earning approximately 
$5,000.00 to $8,000.00 a year” and facts concerning the refusal to 
rezone by Penfield Planning Board and Town Board. Appeal 
App. at 311-13, 423-51. The affidavit of Housing Council’s execu­
tive director also avers that, “ The large majority of the charter 
member groups themselves have membership which is made up 
primarily of low and moderate income whites and non-whites and 
therefore directly represent the interests of such people.” Appeal 
App. at 92.



12

CONCLUSION

For the foregoing reasons, the decision of the Second 
Circuit should be reversed.

Respectfully submitted,

J a c k  G r e e n b e r g  

J a m e s  M. N a b r it , III 
C h a r l e s  S t e p h e n  R a l s t o n  
N o r m a n  J . C h a c h k i n  

10 Columbus Circle 
New York, N. Y. 10019

Attorneys for the NAACP Legal 
Defense and Educational Fund, 
Inc., as Amicus Curiae



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