Appeal from a final judgment of the United States District Court for the Eastern District of New York, Costantion, Judge, dismissing the complaint for lack of standing.
Kaufman and Winter, Circuit Judges, and Ward,*fn* District Judge.
This is an appeal from a judgment of the United States District Court for the Eastern District of New York, Costantino, Judge, dismissing for lack of standing a complaint alleging that a Huntington, New York zoning ordinance is racially discriminatory and therefore invalid. We reverse and remand.
The complaint alleges the following facts. Believing there exists a need for increased low and moderate income housing in Huntington, New York, plaintiff-appellant Housing Help, a non-profit housing assistance corporation, secured in 1978 an option to purchase a 14.6 acre tract in the Greenhaven/East Northport section of that town,*fn1 a predominantly white area currently zoned for single-family residential units on one acre lots. Housing Help hoped to secure federal funding to construct on the site a 162 unit multi-family housing project to be known as Matinecock Court. Huntington officials were apprised of Housing Help's goals, and on February 22, 1980, Housing Help requested that they schedule a public hearing to consider amending the zoning ordinance to permit the project. That request was referred to the Huntington Planning Department for study. The Department has yet to report.
The project was to be developed as a so-called HUD Section 8 (42 U.S.C. § 1437f (1976)) new construction housing program in cooperation with National Housing Partnership, an organization sponsoring low cost housing projects. Section 8 funds are available only for projects in towns which have submitted to HUD a Housing Assistance Plan (HAP), 42 U.S.C. § 5304(a)(4) (Supp. IV 1980) specifying municipal housing needs, and realistic goals to accommodate those needs, including new construction of HUD assisted rental units. 42 U.S.C. § 5304(a)(4)(B) (Supp. IV 1980). If the goals are unrealistic, HUD cannot approve the HAP.
At the time of Judge Costantino's decision, a 1979-1982 HAP was in force in Huntington. Although the HAP provided a goal of "zero" for new projects, HUD approved it since there were insufficient federal funds to build any projects. However, HUD informed Huntington that if funds became available a new HAP would be required. Under the new HAP, a goal of 100 new or substantially rehabilitated units would be required.
When funds are available, HUD publishes a Notice of Funding Availability and developers respond with proposals for projects in designated sub-areas. When a proposal is received from a private developer, HUD gives the affected municipality an opportunity to comment. Under certain circumstances, a municipality's objection will effectively veto a proposal. For example, if the municipality objects because the proposal is inconsistent with a HUD-approved HAP, the proposal must be rejected. 42 U.S.C. § 1439 (1976). In addition, if the number of units in the proposal exceeds the town's HAP goal by more than 20%, HUD cannot approve it. If no dispositive objection exists, the proposal is then compared to other proposals in the same sub-area, ranked in relation to them, and either funded or not funded depending on the ranking and available monies.
In the present case, a NOFA was published for Suffolk County on June 19, 1980, and Housing Help then proposed their 162-unit Matinecock development. HUD should have rejected the project as proposed, however, because it exceeded by more than 20% the governing zero-goal HAP and the 100-unit goal in the would-be HAP as well.*fn2 HUD nevertheless ranked Matinecock Court in a four way tie for sixth place. One of the other sixth place finishers was Huntington Park, a proposal sponsored by the Town of Huntington for a project in Huntington's multi-family zone. The sixth place ranking constituted qualified approval of both projects by HUD.
On February 23, 1981, the Huntington Branch NAACP, its president, Housing Help, and certain named individuals in need of low and moderate income housing in Huntington filed this four-count complaint against both the Town of Huntington and HUD. Count 1 alleges that Huntington's zoning ordinance discriminates against plaintiffs in violation of Title VIII of the Civil Rights Act of 1968, 42 U.S.C. §§ 3601-3631 (1976), the Civil Rights statutes, 42 U.S.C. §§ 1981, 1982 and 1983 (1976), and the Fourteenth Amendment. Count 2 alleges that qualified approval of the Huntington Park project was also discriminatory. Count 3 alleges that HUD's approval of the "zero" goal HAP violated Title VIII and the Housing and Community Development Act of 1974, 42 U.S.C. § 5301, et seq. (1976) insofar as the HAP "contribute[s] to and perpetuate[s] racial segregation." Finally, Count 4 alleges that Huntington's zoning law also violates the New York Town Law insofar as the zoning scheme was exclusionary and discriminatory.
Meanwhile, Section 8 funds were effectively eliminated for Fiscal Year 1981. On August 13, 1981, a motion to dismiss was filed by both HUD and Huntington. On January 25, 1982, Judge Costantino granted the motion on the grounds that the plaintiffs lacked standing. Relying on this Court's opinion in City of Hartford v. Town of Glastonbury, 561 F.2d 1032, (2d Cir. 1977) (en banc) rev'g, 561 F.2d 1032 (2d Cir. 1976), cert. denied, 434 U.S. 1034, 98 S. Ct. 766, 54 L. Ed. 2d 781 (1978), he held that the virtually complete absence of Section 8 funds rendered meaningless the relief requested in the complaint. Judge Costantino reasoned that, because of the lack of such funding, construction of Matinecock would not result from either amendment of the "zero" goal HAP or invalidation of the zoning ordinance.
The principal issue on appeal is whether Judge Costantino erred in tying plaintiffs' standing to the availability of specific federal housing subsidies.*fn3 The question is whether, because there are no Section 8 housing monies presently available, the injuries asserted by plaintiffs are not "likely to be redressed if the requested relief is granted." Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 100, 60 L. Ed. 2d 66, 99 S. Ct. 1601 (1979). If so, an adjudication as to the validity of the ordinance would resolve an abstract dispute in which the plaintiffs are not "in danger of suffering any particular concrete injury as a result. . . ." United States v. Richardson, 418 U.S. 166, 177, 41 L. Ed. 2d 678, 94 S. Ct. 2940 (1974). That is not a proper function of courts. However, the requirement that the relief requested be likely to redress the injuries alleged by a plaintiff is not a demand for complete certainty. All that is required is a showing that such relief be reasonably designed to improve the opportunities of a plaintiff not otherwise disabled to avoid the specific ...