WARTH v. SELDIN
Argument of Emmelyn Logan-baldwin
Chief Justice Warren E. Burger: We'll hear arguments next in 73-2024, Warth against Seldin.
You may proceed whenever you're ready Mrs. Logan-Baldwin.
Ms Emmelyn Logan-baldwin: Mr. Chief Justice and may it please the Court.
This case is before the Court on a writ of certiorari to the Second Circuit Court of Appeals.
The District Court, Western District of New York, originally dismissed the complaint on two grounds.
None of the petitioners had alleged standing to sue and that no claim was stated.
The Second Circuit Court of Appeals affirms solely on the ground that none of the petitioners have standing to sue.
Thus, the record before this Court consists only of the complaints of the plaintiffs, the motion papers of the respondents on the motion to dismiss and the affidavits in opposition to that motion to dismiss.
The record then as it stand must be reviewed by assuming that all of the material allegations of the complaints are true and that the complaints must be read in the light most favorable to the construction of those allegations by the complainant and to grant any relief that could be possibly granted with the fair and liberal reading of that complaint.
The basic complaint of the petitioners is that the zoning ordinance of the Town of Penfield, New York on its face and as applied is illegal and unconstitutional being racially discriminatory.
The question before this Court is whether any of the petitioners have alleged injury in fact and that injury being within a zone of interest of a constitutional or statutory provision which the petitioners alleged that the respondents have violated.
The petitioners before the Court are basically three groups or three categories.
First of all, the petitioners are low and moderate minority income persons who claim that they had been forbidden or excluded from residing in the Town of Penfield by the operation of the Town of Penfield racially exclusionary zoning ordinance.
Secondly, the petitioners are organizations and associations of persons whose members have been actively involved in efforts to amend the zoning ordinance of the Town of Penfield to permit the construction of low moderate multi-racial income housing there, or who have actually made proposals for the construction of such housing in the Town of Penfield all to know avail.
First of these groups --
Chief Justice Warren E. Burger: But now they don't mean that ordinance to make it multi-racial, do they?
Ms Emmelyn Logan-baldwin: Well, Your Honor, our contention is that the home builders and other private builders and entities have actually made proposals in the form of housing construction which would be within a range which can be purchase by low and moderate multi-racial persons.
The town has arbitrarily refused to grant variances, exceptions and so forth to a very rigid zoning ordinance which dictates the construction only of very expensive and exclusive housing, so that the application of the zoning ordinance dictates a racial stratification and population.
The first of the --
Justice Lewis F. Powell: Behind acquire is that a concrete zoning application refusal in this record?
Ms Emmelyn Logan-baldwin: There are numbered instances, Your Honor, of attempts --
Justice Lewis F. Powell: These specific cases with the parties involved --
Ms Emmelyn Logan-baldwin: Yes, Your Honor.
Justice Lewis F. Powell: -- your clients here?
Ms Emmelyn Logan-baldwin: Yes Your Honor, and let me clarify that.
The Second Circuit Court of Appeals in its decision suggested that there really weren't that kind of concrete proposal.
I submit, Your Honor, that that is a misreading of the record.
The fact is that both the Rochester Home Builders and other entities such as Penfield Better Homes which is a member of petitioner Housing Council have actually tried to have such construction approved in the Town of Penfield.
All of those efforts have been denied, all those applications.
The Penfield Better Homes application to rezone was denied by the town on the basis that the housing was not appropriate or consistent with the use of the adjacent properties, which is single family dwelling.
I think this case falls beyond eventhough its other cases which the Second Circuit suggested are concrete housing proposals.
All efforts here have been totally frustrated, the far worst situation to name those other cases.
And I might point out with respect to the Rochester Home Builders, they allege in their complaint, not only have they made these various and numerous applications for exception to the zoning ordinance, but that the Town of Penfield has threatened that if they pursue this lawsuit, if they try to rectify the exclusionary zoning ordinance that they will not be allowed to do business in the ordinary course of doing business with the public officials of the town in the ordinary course of construction of exclusive housing in the town.
Justice William H. Rehnquist: Did Penfield Better Homes, the one that you mentioned, had a plan denied?
Did they ever seek to review the action of the zoning commission in the New York courts?
Ms Emmelyn Logan-baldwin: They did not.
They possibly as we indicated in our brief could have done so.
But the mere fact that they did not pursue that course, of course, does not prevent them from proceeding as a part of a membership organization to the federal court to get redress for these illegal acts pursuant to the statutes and the Constitution.
Justice William H. Rehnquist: How long before the filing of this suit in the District Court had the Penfield Better Homes application been turned down?
Does the record show that?
Ms Emmelyn Logan-baldwin: It does, Your Honor.
The whole Penfield Better Homes application is included in the record as a part of the affidavit of Mrs. McNab, and I believe the date is 1971 for the conclusion of the denial of that.
And the immediate preceding acts on -- the acts immediately preceding the filing of this complaint were specific and concrete proposals of another organization Metro-Act of Rochester for the Town of Penfield to amended zoning ordinance so that this construction could take place.
Justice William H. Rehnquist: Is Metro-Act a builder?
Ms Emmelyn Logan-baldwin: Metro-Act is a civic organization.
Justice William H. Rehnquist: Is it a builder?
Ms Emmelyn Logan-baldwin: It is not a builder.
It has not engaged in construction itself.
It has engaged to the number of efforts to encourage construction.
One of its members, Mrs. McNab, whose affidavit I have just referred to, is a member of Penfield Better Homes, so there is an interaction between the group plaintiffs and their efforts to build low and moderate income housing in the Town of Penfield.
Justice Harry A. Blackmun: If you prevail here, what type of remedy do you envisage?
Ms Emmelyn Logan-baldwin: Well, the complaint asked for a declaratory judgment that the zoning ordinance is racially discriminatory and therefore, illegal and unconstitutional.
And that there be an appropriate zoning ordinance drafted, proposed and enacted.
It simply the same type of relief that this Court has granted in a number of the cases involving racial discrimination.
Justice Byron R. White: So you think the -- is it only the standing issue here?
I suppose it is, isn't it?
Ms Emmelyn Logan-baldwin: This -- this Court has only the standing issue, Your Honor.
Justice Byron R. White: So if the court was wrong below, it would still have to rule on whether there was cause of action, do you?
Ms Emmelyn Logan-baldwin: Well, I think that the court would have two choices in terms of dealing with this case.
You could certainly remand the Second Circuit, telling it to proceed with the further consideration of whether a claim is stated on its face.
I think, however, that this Court could also remand to the Second Circuit with direction because the record, I think, clearly establishes beyond a shadow of doubt that a claim is stated.
This is a typical a claim of racial discrimination pleaded in the most traditional such form and there are many cases of this Court which would indicate that this is a properly stated claim.
Chief Justice Warren E. Burger: Are you suggesting that on this record, we could make the determination, tell the Court of Appeals of the Second Circuit with the complaint stated a cause of action?
Ms Emmelyn Logan-baldwin: I think the record would permit this Court to remand with directions.
I think they're clearly two choices though.
The only question before this Court is standing, and that is the only question which the Second Circuit reached.
Justice Harry A. Blackmun: You think that there is an issue here of justiciability as well as standing?
Ms Emmelyn Logan-baldwin: I don't think, Your Honor.
I think if you referred to a question of rightness, if I understand the question correctly, I think there could be no such reading on this record.
Rightness would involve a consideration of whether the issues have reached the point of administrative finality.
This zoning ordinance was adopted in 1962.
We have had numerous applications of the zoning ordinance.
Its -- its pattern of enforcement is clear.
The plaintiffs clearly can show that that pattern of enforcement is totally racially exclusionary.
Justice Harry A. Blackmun: This is why I asked you about the type of remedy you envisaged that in part of your answer was I take it that you would expect judicial enforcement of a -- the drafting of a new ordinance.
Ms Emmelyn Logan-baldwin: Well, I think, Your Honor that in a case of racial discrimination, such an order directing affirmative relief, it has been a part of a District Court handling of the case, I think it would be appropriate here.
I think though again if I could focus on the one issue that is before the Court, and that is standing, and that as to the nature of relief, that is within the providence of the District Court.
There of course has been no proof, no depositions, no interrogatories, we maintained it.
Justice Harry A. Blackmun: It went off on the ground also that you can think did not state the cause of action.
Ms Emmelyn Logan-baldwin: That the District Court only Your Honor, the Second Circuit.
Justice Harry A. Blackmun: Therefore, I was expecting starting from this Court, that to say that it does state a cause of action before there could be a charge?
Ms Emmelyn Logan-baldwin: That's correct.
Chief Justice Warren E. Burger: We'll resume there after lunch.
Ms Emmelyn Logan-baldwin: Okay.
Chief Justice Warren E. Burger: You may continue.
Ms Emmelyn Logan-baldwin: The Town of Penfield, New York is virtually a 100% white population.
In the 1960 census, its population was 12,601.
Now, only 23 of those persons were blacks.
In the 1970 census, the population of the town had practically doubled to 23,782 persons.
At that time, there were only 60 black persons.
The ordinance of the town is so drafted that there cannot be any construction there except exclusive housing.
Justice Potter Stewart: Penfield immediately contiguous to Rochester?
Ms Emmelyn Logan-baldwin: It is.
It is one of the suburban towns which encircle the City of Rochester.
Justice Potter Stewart: So that the joint from Rochester to the Penfield one would not be aware that there's --
Ms Emmelyn Logan-baldwin: Not at all.
Justice Potter Stewart: -- not the same place.
Ms Emmelyn Logan-baldwin: It's an entire metropolitan area, persons work and live in both Penfield and Rochester; totally interchange a population, Your Honor.
Justice Potter Stewart: And what's the zoning generally of the Penfield, does it include industrial and commercial zoning as well as residential?
It's a complete ordinance allowing most of kinds of uses of any full community.
It's not a -- it's essentially a bedroom community.
In terms of its zoning for residential purposes, however, 98% of the vacant land is zoned for single family dwellings, and the requirements to the ordinance were such that lot size, total lot size, house setback, side setback, the space of the house dictate that according to 1972 Building Figures, you couldn't construct a single family dwelling there costing less than $29,115.00.
There is only three-tents of 1%.
Justice Potter Stewart: That would include the cost of land acquisition?
Ms Emmelyn Logan-baldwin: That would include the cost of land.
Justice William H. Rehnquist: What is the land limitation, Mrs. Baldwin?
Ms Emmelyn Logan-baldwin: In --
Justice William H. Rehnquist: The minimum lot size?
Ms Emmelyn Logan-baldwin: In terms of minimum lot size, it's roughly 20,000 square feet, Your Honor.
Justice William H. Rehnquist: Half an acre?
Ms Emmelyn Logan-baldwin: Yes, Your Honor.
In terms of what the experts who examine the zoning ordinance suggests as a reasonable size of lot, that is half of that, roughly 10,000 square feet.
The zoning ordinance permits the --
Justice Harry A. Blackmun: Who are the experts?
Ms Emmelyn Logan-baldwin: The experts are city planners who have filed an affidavit on behalf of the petitioners.
It appears in the record beginning at --
Justice William H. Rehnquist: What other qualifications could tell Penfield what they ought to have?
Ms Emmelyn Logan-baldwin: Well, these are persons who actually are involved in drafting of ordinances, involved in the study of zoning ordinances.
All of -- two of these experts have participated in actual studies of zoning ordinances including the Town of Penfield ordinance on behalf of the metropolitan Governments of the Rochester area.
And in that study which was conducted in 1970, the experts concluded that the only reason for the total absence of low and moderate income housing in the suburban towns including the Town of Penfield is racial prejudice.
So that --
Justice Thurgood Marshall: Who are these experts?
Ms Emmelyn Logan-baldwin: Well, the one, Mr. Kling is a professor at the University of Rochester.
He is generally known as an urban planner.
Justice Thurgood Marshall: Professor of what?
Ms Emmelyn Logan-baldwin: Professor of urban planning, I believe.
Justice Thurgood Marshall: Degrees of what?
Ms Emmelyn Logan-baldwin: I believe, Mr. Kling has a PhD in urban planning from the University of Michigan.
He is a present -- presently teaching both at the University of Rochester and the St.John Fisher's College.
Mr. Tatikin is a member of the Municipal Research Agency of the City of Rochester, a research institution that undertook the study of zoning in 1970.
Justice Thurgood Marshall: Difficulty with qualification if I don't have anything with person.
Remember, the only question my Brother Blackmun was asking, what were their qualifications.
Ms Emmelyn Logan-baldwin: Yes.
Well, all of them are -- have been as careers involved in considerations of what are permissible land uses and spaces in communities.
Justice Thurgood Marshall: And their expertise in the Constitution is what?
Ms Emmelyn Logan-baldwin: Their --
Justice Thurgood Marshall: Or should I say if any.
Ms Emmelyn Logan-baldwin: They examine this ordinance from the standpoint of the health and safety factors --
Justice Thurgood Marshall: They don't have to be judges.
Ms Emmelyn Logan-baldwin: They don't have to be experts in the Constitution.
Chief Justice Warren E. Burger: Are you suggesting that there is something inherently wrong or undesirable for people who want to have a lot that's a half acre or an acre or two acres on which they rear their families?
Ms Emmelyn Logan-baldwin: That is not inherently wrong.
What I'm suggesting --
Chief Justice Warren E. Burger: What do the people do want that kind of space?
Ms Emmelyn Logan-baldwin: Well, there's nothing in this case that would prevent those persons freely owning that kind of property.
This case is directed, Your Honor, solely to the affirmative acts of officials of a town to so classify and so zone, so as to exclude racial minorities.
That is what's at issue, the affirmative acts.
There is nothing here in this case that would prevent ordinary uses of land by private individuals in terms of space if they wanted to acquire that space.
Justice William J. Brennan: Any of the single family homes owned by members of a racial minority?
Ms Emmelyn Logan-baldwin: The record doesn't address itself to that specifically, Your Honor.
There are according to census figures, 60 blacks as of the 1970 census.
There is a housing study in the record of the Town of Penfield itself which would seem to indicate that the persons with the large incomes of course are occupying very, very expensive houses there.
Of the zoning ordinance, only 3% or three-tenths of 1% permits multifamily construction.
And there again, the requirements of space for apartments and other amenities such as --
Justice William J. Brennan: I gather, it's not suggested that a one -- a member of racial minority who can afford it, even one of the most expensive of the houses is precluded from building or buying one --
Ms Emmelyn Logan-baldwin: Well --
Justice William J. Brennan: -- by the ordinance.
Ms Emmelyn Logan-baldwin: No, not on its face.
The effect of this ordinance as it applies is to exclude the whole class of people and those that class of people is defined, Your Honor, as persons, minority persons who earn roughly between $5,000.00 and $11,000.00 per year and who can afford a single-family dwelling costing no more than $20,000.00 in an apartment unit winning for no more.
Justice Byron R. White: The class is just to minority groups.
I mean other people with the same income limitations have the same problem --
Ms Emmelyn Logan-baldwin: Well, Your Honor that is the practical effect of this ordinance.
Justice Byron R. White: Aren't they -- weren't -- white and the black of same income have the same problem, wouldn't they?
Ms Emmelyn Logan-baldwin: Well, --
Justice Byron R. White: -- boarding a house such only they can do?
Ms Emmelyn Logan-baldwin: Arguably so, Your Honor.
Justice Byron R. White: Arguably is -- well, tell me why it isn't so?
Ms Emmelyn Logan-baldwin: Well, in the last analysis, our allegations are the ordinance is aimed at minorities, blacks and Spanish Americans and in fact, the studies of its applications --
Justice Byron R. White: That is what I asked you.
I asked you whether or not would the same -- if the white would have the same problem affording a house?
Ms Emmelyn Logan-baldwin: Yes, but the impact of the ordinance is on the racial minority, the black and the Spanish Americans.
Justice Byron R. White: Why is the impact on them anymore than on a poor white?
Ms Emmelyn Logan-baldwin: Well, those are the persons who are predominantly seeking this housing and against which the ordinance primarily excludes.
Justice Byron R. White: What evidence do you have that the blacks or the poor blacks and not poor whites were excluded?
Ms Emmelyn Logan-baldwin: Well, the first evidence, Your Honor, is the housing study of Monroe County which was conducted 1970 which indicated that the primary motivation for the exclusion of this type housing is to exclude blacks.
The second indication is in the record in the 1972 study of the town itself, which concludes that its impact is totally exclusionary.
Justice William J. Brennan: I take it you say that in any event, the allegation and all we have is the allegations and if the standing is established and you got the burden of proving that.
Ms Emmelyn Logan-baldwin: Certainly, Your Honor, that's precisely the --
Chief Justice Warren E. Burger: Under the rules, do you regard that is well pleaded fact or is it a conclusion?
Ms Emmelyn Logan-baldwin: Well, those are the allegations, Your Honor.
Chief Justice Warren E. Burger: Well, is it a well pleaded fact --
Ms Emmelyn Logan-baldwin: Yes.
Chief Justice Warren E. Burger: -- under the rule?
Ms Emmelyn Logan-baldwin: That -- that the motivation is --
Chief Justice Warren E. Burger: Is it not an opinion?
Ms Emmelyn Logan-baldwin: No, I think it's a matter of fact which evidence can be adduced.
Justice Thurgood Marshall: Are there any Negro that can buy $21,000.00 houses in Rochester?
Are you going to tell me that there are not any?
Ms Emmelyn Logan-baldwin: No, Your Honor, no.
Justice Potter Stewart: Well, yes, there are, are there not in the Rochester community?
Ms Emmelyn Logan-baldwin: That could by to accounts costing $21,000.00 if that was the question.
Justice William J. Brennan: In Penfield?
Ms Emmelyn Logan-baldwin: In the City of Rochester was questioned.
Justice Thurgood Marshall: No, no, in this town right here.
Ms Emmelyn Logan-baldwin: In Penfield?
Justice Thurgood Marshall: Yes.
Ms Emmelyn Logan-baldwin: There again, I don't think the record speaks particularly to that question, Your Honor.
Justice Thurgood Marshall: Well, is there anything in the record that shows that there's no Negro in the Rochester area that can afford the $21,000.00 house, the answer is no.
Ms Emmelyn Logan-baldwin: No.
Justice Thurgood Marshall: Because if it was in the record, it wouldn't be true.
Ms Emmelyn Logan-baldwin: Right.
Justice Thurgood Marshall: So, it is true that the fact that $21,000.00-limit does not exclude all Negroes.
Ms Emmelyn Logan-baldwin: Not all, no, Your Honor.
Justice Thurgood Marshall: It does not.
Justice William H. Rehnquist: Mrs. Logan-Baldwin, supposing that we were to rule in your favor on standing in the Second Circuit or the District Court were to rule on your favor on the constitutional question, as a result of that ruling, would there be any identifiable parcel of land or building that would be then available for your clients?
Ms Emmelyn Logan-baldwin: Yes, Your Honor.
Justice William H. Rehnquist: Can you tell us from the record what the parcel would be?
Ms Emmelyn Logan-baldwin: Well, the record has a report of the Town of Penfield which examines its total land area.
Justice William H. Rehnquist: I mean simply as a result of the ruling that I've describe.
Could you point to an identifiable parcel that would then be available?
Ms Emmelyn Logan-baldwin: Well, yes Your Honor, there have been several proposals that we've talked about.
Justice William H. Rehnquist: Are they still pending?
Ms Emmelyn Logan-baldwin: There are some so-called Plan Unit Development proposals that are in some stage of being processed.
Justice William H. Rehnquist: But it -- does the person own the land or have an option on the land?
Ms Emmelyn Logan-baldwin: In the case of Plan Unit Developments, there is actually ownership or options and those could proceed.
I think it's very interesting to note the experience to the Town of Penfield with the Plan Unit Development ordinance in order to accent what I'm saying about racial prejudice.
This type of an amendment to the ordinance is ordinarily viewed as a way in which you can construct low and moderate multi-racial income housing.
They enacted the ordinance, but when builder sought to use that ordinance to construct this housing, they -- the town board specifically responded, reacted to citizen pressure suggesting that this would permit those people to move in and property values would go down and reduced the permissible density, so that what started out to be the utilizing of the ordinance for the construction of this type of housing resulted in either those projects being abandoned completely.
Justice William H. Rehnquist: Well, doesn't it grant a special use permit to give a Plan Unit Development under the Town of Penfield?
Ms Emmelyn Logan-baldwin: Well, there's a special -- an especially cumbersome process you might say.
Justice William H. Rehnquist: You can surely answer that yes or no, can't you?
Does it or does it not?
Ms Emmelyn Logan-baldwin: Yes, I think that's a special use.
Justice William H. Rehnquist: And then what you're complaining about is that the board refused to grant a special use permit?
Ms Emmelyn Logan-baldwin: Well, they have not processed completely these Plan Unit Development applications.
Our allegation is that if they have either delayed them inordinately or so modified them to transform them to exclusive housing so that essentially, those efforts have been -- have failed.
Chief Justice Warren E. Burger: On the thesis that you advanced here, I suppose that if there were an area in an 20 miles or 30 miles out of a large city which was laid out for minimum 10-acre lots, 10-acre tracks for people who wanted to have a lot of space and perhaps ponies for their children and what not, that would be vulnerable to the constitutional attack you made as soon as the low income housing began to press up against that.
Ms Emmelyn Logan-baldwin: Well, Your Honor again, I don't think that case reaches this.
We have here only a questing --
Chief Justice Warren E. Burger: The difference in principle from what you're advocating here?
Ms Emmelyn Logan-baldwin: No.
Again, what we're talking about here are affirmative acts to the Town of Penfield to exclude minorities.
Now, we have to of course have our day court on those allegations.
Chief Justice Warren E. Burger: Well of course, if 10,000 -- if 20,000 square feet can be made out as exclusionary, then 10 acres very clearly would be more exclusionary, would it not?
Ms Emmelyn Logan-baldwin: Well, yes.
But again, what we're talking about are particular individuals who make a claim that the affirmative acts of the town have a particular effect and pattern and each case would have to be examined on its own.
But we're saying here that this is racially motivated and it is the same as the town hanging a sign outside the Town of Penfield that minorities are not wanted here.
It has that same effect.
I'd like to direct my --
Justice Thurgood Marshall: The sign that said minorities with less than $21,000.00 are not allowed?
Ms Emmelyn Logan-baldwin: Well, again Your Honor --
Justice Thurgood Marshall: Are you on the racial point or the money point?
Ms Emmelyn Logan-baldwin: Well, Your Honor, we're on the racial point.
We obviously have to, at the time of trial, introduce the evidence which substantiates that.
But in the record, the conclusions are that the enforcement of this ordinance has been with that intent in mind.
If I could, I'd like to reserve the remaining time for rebuttal.
Justice Thurgood Marshall: Can a white person build anything out there for less than $21,000.00?
Ms Emmelyn Logan-baldwin: No.
Justice Thurgood Marshall: Nobody had.
Ms Emmelyn Logan-baldwin: It is -- it's totally exclusionary.
In fact, the Town of Penfield has --
Justice Thurgood Marshall: Are there any Negroes out there at all?
Ms Emmelyn Logan-baldwin: At all?
Justice Thurgood Marshall: You said there was so.
Ms Emmelyn Logan-baldwin: There are 60 according to the census.
Justice Thurgood Marshall: Are they --
Ms Emmelyn Logan-baldwin: 60 out of 23,000.
Justice Thurgood Marshall: Are they living in the homes?
Ms Emmelyn Logan-baldwin: The record doesn't show where those 60 and who those 60 are, Your Honor.
Justice Lewis F. Powell: May I ask a question?
Ms Emmelyn Logan-baldwin: Yes, Your Honor.
Justice Lewis F. Powell: At the time they complaint was filed, Mr. Ortiz worked in Penfield?
Ms Emmelyn Logan-baldwin: That's correct.
Justice Lewis F. Powell: In May of that year, he gave that job up for one reason or another.
Ms Emmelyn Logan-baldwin: Yes.
Justice Lewis F. Powell: Do any of the present plaintiffs worked in Penfield?
Ms Emmelyn Logan-baldwin: Mr. Ortiz was the only person who worked in Penfield.
There are members of plaintiff Metro-Act of Rochester who live and reside in the Town of Penfield.
Approximately, 9% of the membership of plaintiff Metro-Act of Rochester are residents of the Town of Penfield.
Chief Justice Warren E. Burger: Very well.
Ms Emmelyn Logan-baldwin: Thank you.
Chief Justice Warren E. Burger: Mr. Hartman.
Argument of James H. Hartman
Mr. James H. Hartman: Mr. Chief Justice and may it please the Court.
I must take issue with the argument just made and that there are instances in this record that would indicate what my adversary concludes.
First of all, the relief sought here is very, very sweeping.
It's to declare the zoning ordinance of the Town of Penfield unconstitutional to enjoin its enforcement and to require a new ordinance to be passed.
Secondly, we have these individual plaintiffs, the real plaintiffs were originally in the case, people who are indeed members of minority groups and who are members of -- who are poor, who are poor members of the minority groups.
Now, not one of these individuals has made a single application for housing in Penfield.
The -- one of these big persons, Ms. Angela Reyes, alleges in supporting affidavits which were submitted on the motion to dismiss this complaint, that she'd looked around for two years, but she saw a broker and that the broker, one broker was helpful.
She has an income of $931.00 a month, she and her husband, and disposable income for housing of $231.00 a month.
That's the extent of her and that's the most that's alleged by any plaintiff.
Now, they say, the --
Justice Byron R. White: Including individuals?
Mr. James H. Hartman: Individual plaintiff, yes Your Honor, which I'd like to treat first.
Then, they alleged in addition that the in the complaint that the zoning ordinance of the Town of Penfield discriminates against minorities because it hasn't waived, modified and the administrators of that ordinance haven't waived, modified, amended, granted building permits of variances of any kind to relieve the situation.
But there's not a single application for such a permit except by one of the association members whose not a plaintiff and who is not a party -- doesn't seek to be a party.
Now, we're talking about a very broad constitutional affect that this Court should rule, concerning these -- allowing these plaintiffs to have standing.
Because we're talking about the Fourteenth Amendment, we are to talk in terms of what specifically that these plaintiffs do to create a fact context which would indicate to the Court that the Fourteenth Amendment has indeed been violated.
Without these facts, what can we work with?
What relief will we give?
Will the relief -- first of all, the adjudication maybe unnecessary because on an application for some kind of relief from the zoning ordinance, it might very well be granted.
If it's denied, at least some controversy, some confrontation with the town or its administrative agencies would have taken place to give a factual context within which to make a constitutional determination of this import.
Now right now, none of these affidavits indicate that any plaintiff wants to live in Penfield.
One says, “I might want to live there”, that's Ortiz's affidavit.
Reyes doesn't mention wanting to live in the Penfield or that they will live in Penfield.
Have they been injured or is this allegation and their position totally speculative?
Because if the relief were granted which they seek, the abolition in effect of the Penfield zoning ordinance, would these individual plaintiffs receive themselves any substantial relief?
And have they been injured?
They have a personal state in the outcome of this litigation.
If they haven't alleged, they try to get into Penfield or that they even desire to get into Penfield?
Isn't this kind of like O'Shea against Littleton where the relief they had ripened into a position to be relieved by any judgment?
And I think we have to look at this manner from the vantage point of the complaint and overlook, the litigation that would take place to the outcome of that litigation and determine in order to determine standing whether that outcome would in effect affect these plaintiffs.
Now, I'd like to go if I may to the association of plaintiffs and what I've said concerning the individual plaintiffs applies to the associational petitioners.
One is a plaintiff, Metro-Act.
One, there was -- there was a motion made to bring in the Housing Council of the Monroe County Area.
Now, that motion was denied because standing was denied for all the other petitioners.
And the motion is sort of surrounded by some procedural vagary because it doesn't refer to Rule 19 of the Federal Rules of Civil Procedure, which indicate when a party should be joined as a plaintiff and/or as a defendant depending on the circumstances.
In any event, the motion to bring them in is denied and they seek to be made a party plaintiff, and it is that Housing Council which refers to Penfield Better Homes who is not a party and doesn't seek to be a party.
Now, the Housing Council is basically an association of associations and public agencies.
The Penfield Better Homes did indeed at one time apply for a project called Highland Circle in the Town of Penfield and sought variances or permits or actually I think an amendment to the zoning ordinance.
It was denied and that -- as a matter of fact, it was denied in 1969, September of 1969, and then on -- a rehearing was had in November of '69, and on January 12, 1970, there was a denial of any further public hearing and these are in the appendix at pages 631, 881, and 883.
Now, for two years, Penfield Better Homes did nothing.
They have done nothing yet.
Housing Council is moved to be brought into the case and uses Penfield Better Homes as an incident to give stand.
But Housing Council has no complaint in this action.
If Housing Council were allowed to remain standing as a party to this action, there are no allegations because they have not yet put in the complaint.
Now, is Housing Council derivatively in a better position to pursue these rights than is Penfield Better Homes who had lawyers made the application was turned down and was turned down on three grounds: erosion problems, traffic problems, and that the project was inconsonant with the surrounding neighborhood, which is a general and classical way that variances and rezonings are turned down in towns that inconsonant with the neighborhood.
If they didn't bring the action, are we to assume that that was done on racially discriminatory grounds?
If Penfield Better Homes for two and a half years and today has not instituted any kind of action or proceeding in either the state courts in the State of New York or in federal court alleging anything no less racially discriminatory conduct or a racially discriminatory effect of the zoning ordinance to Town of Penfield is Housing Council derivatively to assert that through an affidavit of Mrs. McNab who is not yet a party and has no complaint?
Justice Byron R. White: Is the record clear one way or another as to whether one of the reasons that this organization was turned down was because it wanted to build houses on lots that were smaller than provided for in the zoning ordinance?
Mr. James H. Hartman: The decision is in the record, Your Honor, yes sir.
The decision is in the record and says and gives as its reasons, those three things I've related to.
Justice Byron R. White: Well, I know but you still haven't answered my question I gather.
Mr. James H. Hartman: I don't know that it's because of they wanted to build a housing of a greater density and would ordinarily be allowed.
I think so, I think so.
Justice Byron R. White: Well, what was the basis for saying that their project wouldn't be consonant with the surroundings?
Mr. James H. Hartman: I think because it was for higher density multifamily housing in a area that was surrounded by residential single-family now.
Justice Byron R. White: Is that clear in the record?
Mr. James H. Hartman: It should be clear in the record, Your Honor.
Justice Byron R. White: Well now, if an organization applies for variance to build other than a single-family dwellings on lots of specified size and it's turned down and it -- I suppose it would have had at that point to say standing to litigate in the state court as to whether the zoning board decided correctly.
Mr. James H. Hartman: It has two methods it can use in New York state courts.
If the denial was done in an administrative manner by an administrative board, it can take a proceeding under Article 78 of the Civil Practice Law and Rules which is a review in a nature or certiorari mandamus, etcetera.
Justice Byron R. White: Well, it would have a personal stake here?
Mr. James H. Hartman: Oh, yes.
Justice Byron R. White: What across the street with federal court had said that, I've been heard here by zoning ordinance that's unconstitutional?
I want it declared it unconstitutional, would you say it didn't have standing?
You may not agree with the cause of action, but how about standing?
Mr. James H. Hartman: He may have standing in the federal court if he raises a federal constitutional issue, certainly.
If that party makes himself a plaintiff in a federal action and says because of this instance, in this factual context, when I confronted the town of Penfield and sought relief, I allege that they denied it for racially discriminatory reasons; I think he would have standing.
Justice Byron R. White: Not racially discriminatory reasons, but because --
Mr. James H. Hartman: Well, the federal --
Justice Byron R. White: -- because I wanted to build higher density housing in the zoning --
Mr. James H. Hartman: No, then he would not have standing.
If it was just for high density housing, I don't think he have standing.
Justice Byron R. White: I know, but he turned -- he was denied of his permit for that reason, and he goes and says “the zoning ordinance is unconstitutional, and two have denied me, this is unconstitutional”.
Now, why doesn't he have standing?
Mr. James H. Hartman: Well, he would if he raised the valid constitutional question under the Federal Constitution.
If he says he's been deprived of property -- if he would allege, he's been deprived to property for instance, he can't develop this property.
Justice William J. Brennan: Well, I gather your argument anyway is he didn't do it.
Mr. James H. Hartman: He didn't do it.
Justice William J. Brennan: That this association of which Penfield was a member, that's he attempted to do it, is that it?
Mr. James H. Hartman: Right, that's correct, that's correct Your Honor.
Justice William H. Rehnquist: Aren't your little confusing standing with valid defense to the constitutional claim in answer to Justice White's question.
In other words, you say that he would have standing if he made a valid constitutional attack on the ordinance, but the two or somewhat separate.
Mr. James H. Hartman: Yes, yes Your Honor, they are separate.
Now, I say he would have standing if he, his question -- his constitutional question were raised in a specific factual context which is lacking here.
Not just because he raises the constitutional issue, no, no.
Justice William H. Rehnquist: You're saying that if Penfield Homes had gone over to the federal court right after they were denied and said this particular application was denied for this reason, they would have standing?
Mr. James H. Hartman: Yes, Your Honor.
Justice William H. Rehnquist: Regardless of the merits that are constitutional --
Mr. James H. Hartman: That's right, they would have standing in that case, but in this record, there is no instance of that and I say an associate -- can an association -- there are association case have been brought and it's been sustained and association can bring a case in certain circumstances.
But are they in a better position, then Penfield Better Homes and they are not seeking that litigation.
They have joined in the general abstract speculative nature of the case before this Court.
Justice Harry A. Blackmun: In this connection, now that we've already interrupted you, there is this paramount of talk in some of the amicus briefs about Title 8 of the ‘68 Act.
Mr. James H. Hartman: Yes, Your Honor.
Justice Harry A. Blackmun: Is there any allegation whatsoever in the complaint about Title 8?
Mr. James H. Hartman: Not to my reading of the complaint.
Justice Harry A. Blackmun: Was it considered by the courts below?
Mr. James H. Hartman: Not to my knowledge, Your Honor.
In addition to these organizational petitioners, the Housing Council, a Metro-Act too is in association.
Metro-Act talks of a proposal.
That proposal is Exhibit Q, the next to the affidavit of a Robert Warth in the record, a proposal that they presented to the Town of Penfield.
Now, what happened and it's in the record is that they came in with this -- the zoning ordinance of Town of Penfield is 89 printed pages and it covers a multitude of issues which are properly to concern of local Government.
Metro-Act comes in and say, we made a proposal, four type-written pages which starts off with the threat of litigation if you don't listen to us.
It alludes to no particular property, but it says houses ought to have the square -- land ought to be 7,000 square feet for some houses, comes in again, the next thing is 40% of Penfield ought to be zoned for this and something for that.
Is that a proposal when they did make proposals which are in the record in the City of Rochester which picks sites, which gave the kind of housing, which show the kind of recreation, which went into the many, many details that are required when you talk about a proposal for legislation by a town?
Now, can Metro-Act -- has it been injured?
None of its members have been injured.
If none of its members had been injured, how can Metro-Act come in and say it's been --
Justice William J. Brennan: (Voice overlap) to what members?
Mr. James H. Hartman: Any -- well, Metro-Act, there's a lot of people who were interested in housing.
It has some poor members of minority groups.
It has some people who are not poor members, it has some rich people.
Justice William J. Brennan: But it's an organization of individuals?
Mr. James H. Hartman: Yes, Your Honor.
Justice William J. Brennan: Not of association --
Mr. James H. Hartman: No, no, council is of associations.
Now, if the individual plaintiffs, if some of them are members of the Metro-Act and they haven't described a specific injury, how can Metro-Act now derivatively have a better claim than any of these individuals would?
Justice Thurgood Marshall: -- for permission to buy and develop his own home below $21,000.00 and it has been denied, do I understand you to say they have a right of action?
Mr. James H. Hartman: No, I said he -- if he'd applied --
Justice Thurgood Marshall: Well, you said this group has a right or action.
Mr. James H. Hartman: I said that group doesn't have a right of action.
Justice Thurgood Marshall: Didn't you say that the group -- what's the name of it --
Mr. James H. Hartman: Oh, that Penfield Homes.
Justice Thurgood Marshall: Yeah.
Mr. James H. Hartman: If Mr. -- I said that they would have standing if they --
Justice Thurgood Marshall: But was Ortiz has standing.
Mr. James H. Hartman: If he made an application on a specific parcel to build the particular home and he was denied, he would have standing.
Justice Thurgood Marshall: Why does he have to have a particular parcel?
Mr. James H. Hartman: Well, a particular application could be a tenant for an apartment.
He doesn't have to really have an apartment.
He had a -- I don't even think that it may --
Justice Thurgood Marshall: So you deny him standing because he didn't first go to the zoning board.
Mr. James H. Hartman: That's right.
Now, it or any other board, let me add this, that even going beyond a specific interest in property or going beyond the specific parcel of property, I see no reason if relief is sought from the Town of Penfield that some steps shouldn't been taken to confront the town and say we want some land zone.
Now, whether Metro-Act does it or Mr. Ortiz does it for one piece of land --
Justice Thurgood Marshall: Well, what you say is that if it doesn't buy the land, he has no cause of action, and if he does buy the land, he might have a cause of action.
Mr. James H. Hartman: No, I say if he buys the land, he has a cause of action after he has applied for the relief.
Justice Thurgood Marshall: But he has put a whole lot of money for that.
Mr. James H. Hartman: But Metro-Act doesn't have to put up money for that, Your Honor.
Justice Thurgood Marshall: We'll talk about Ortiz for the time being.
Ortiz, because he would has to buy this land.
Mr. James H. Hartman: That's correct.
Well, if he needed the land, but I don't think he needs the land to make that application.
I think he can go in without the land for some kind of relief.
They mentioned in the complaint not only variances and permits, Your Honor, they mentioned waivers and changes in zone.
Now, he doesn't have to have land for that.
Justice Thurgood Marshall: You can't do that without owning a piece of land.
Mr. James H. Hartman: I would think so.
Justice Thurgood Marshall: He could make the application.
Mr. James H. Hartman: I see no reason actually and I tell you, if he's denied a hearing on the application; that might give him some kind of standing.
Justice Lewis F. Powell: Mr. Hartman.
Mr. James H. Hartman: Yes, yes Your Honor.
Justice Lewis F. Powell: Will you describe briefly the procedure in Penfield for one who wants to build the house?
First of all, he got the building -- he applies for a building permit.
Mr. James H. Hartman: He applies for -- he first had to submit a site plan if it's more than one house or subdivision plan to the planning board.
Justice Lewis F. Powell: The site plan and plans as specification also --
Mr. James H. Hartman: Right.
Building inspector has to make sure they comply with the building code to the state or the town.
Justice Lewis F. Powell: Right and --
Mr. James H. Hartman: He gets a building permit --
Justice Lewis F. Powell: Let's assume he's turned down.
Mr. James H. Hartman: He has an action if he turned down on an arbitrary or capricious basis --
Justice Lewis F. Powell: No.
Let's assume he's turned down, may he appeal to the Board of Zoning Appeals?
Mr. James H. Hartman: From the determination of the enforcing officer, yes, the building inspector.
Justice Lewis F. Powell: So the first step is to plaque a building permit, the second is to go to the Board of Zoning Appeals.
Mr. James H. Hartman: Right.
Justice Lewis F. Powell: Suppose he loose his land, may he go to the city council?
Mr. James H. Hartman: No, he goes to Court from there in my --
Justice Lewis F. Powell: Go to Court from there.
Mr. James H. Hartman: Right, yes.
Justice Lewis F. Powell: And may he go to Court from there under New York laws?
Mr. James H. Hartman: Yes.
The Article 78 proceeding and the zoning board has final jurisdiction over appeals from enforcing officers and also ab initio, if you will jurisdiction to grant variances.
If he's denied there, he goes right to the Court.
The town board is more legislative.
Justice Lewis F. Powell: How broad is a jurisdiction to grant variances?
Mr. James H. Hartman: It's discretion -- great deal as discretionary.
There are certain cases, New York state cases which hold instances in which variances are proper and one are not, and some of the things are that there's a unique problem that it will not do violence to the general character of the town and that kind of thing.
I must say that there's a lot of latitude in the language of the cases as well as the authority of the zoning board to rule on these things.
The last group of petitioners here -- oh, I'm sorry.
I forgot one organization or group which are the home builders and they seek to intervene.
And they say that they'd been -- that number one, they have not been able to build lower middle income housing because of this racially discriminatory ordinance, and that they've been injured.
That's the extent of it, not a single instance of a single home builder attempting to get a single permit or make an application for a single variance is in this record.
And these people are in a position; that's their business, to buy land, to take auctions on land, to get into contracts for the purchase of land and go in and get variances and get zoning relief because they do it all the time.
Justice William H. Rehnquist: Does the ordinance permit an option or to make any application for variances?
Mr. James H. Hartman: Yes, Your Honor.
Contract, then the optionee, optionor usually they're joined in by the owner and the potential purchaser.
Justice Byron R. White: If I'm wrong, did Mrs. Baldwin said there were some plaintiffs in this case maybe applicable for intervention who in fact had options or own land?
Mr. James H. Hartman: She said so it's not in the record.
Justice Byron R. White: She just say that --
Mr. James H. Hartman: Yeah, but it's not in the record except for Penfield Better Homes.
Now, there are some parts that are indeed by this time, they're under construction but the time that complaint -- the part ordinance of the Town of Penfield happens to say that --
Justice Byron R. White: What was that?
Mr. James H. Hartman: PUD, Plan Unit Development, I'm sorry.
We use it everyday, happens to say that the purpose of this is because we recognize the need for housing at all economic levels.
Now, it's a new ordinance, it's a new field, but there are four PUDs, Plan Unit Developments underway at some stage in Penfield.
Now, these home builders, as I say, not a single instance in the record of a single application by those in the best position to test this ordinance.
So can again, the association of home builders derived or obtained derivatively a better right, can they assume an injury when no member has pleaded an injury, and I say again it's just -- there's a broad side attack that they've been threatened about bringing the suit.
There was a motion made here and 900 pages of material came in and not one specification on that, and apparently didn't dissuade him from trying to intervene in the suit.
So, I don't know where that statement comes in, there's just no way that I could state anything about it.
There's nothing in the record to verify a support that that if they brought the suit, they'll be in trouble in Penfield.
Now, the third group of petitioners are plaintiffs who sued in the nature of taxpayers and I don't think that I ought to address myself to that at length.
I think that simply Frothingham against Mellon and Deramus against the Board of Education are preclusive on this kind of a taxpayer suit.
Here, you have taxpayers.
In the City of Rochester who attempt -- they assert that they have to pay higher taxes in Rochester because in Penfield, there is not any tax abated housing.
Therefore, Rochester bears a greater portion of tax abated housing and increases their real estate taxes.
Well, I just want to use the word remote.
I don't think there is a specific out of pocket injury.
They don't attack a spending ordinance -- spending law statute or ordinance, nor one are concerned with taxing.
In addition to which, they don't attack one in their own municipality or they attack it in an adjoining municipality, an ordinance which this Court has held is concerned -- properly concerned with the interest it seeks to protect that of land use, and typically, the concern of local Government.
There has been no good faith showing of a pocket book injury, there are some figures that taxes have gone up, but it only gone up all over not only in the City of Rochester.
How are you going to compare that or assert that's a result of Penfield zoning ordinance, I don't know.
As I said, this is a very -- a decision here giving standing in this case would have some very, very broad far reaching and sweeping effects on the municipalities of 50 states; this is a typical zoning ordinance, pretty typical zoning ordinance and so found by the Court of Appeals for the Second Circuit.
There's a fair of any of these plaintiffs or petitioners to show a personal state in the outcome of the case.
There's a failure to show a definitive injury.
There's a failure to show a definitive factual context within which this Court can test a serious constitutional question.
I think it misses the point so clearly made in Baker against Carr that such a personal stake in the outcome of the controversy as to assume that concrete adverseness which sharpens the presentation of issues upon which the courts so largely depends for illumination of difficult constitutional questions is missing here.
Justice Byron R. White: Suppose I go at Penfield, and I shop for a house and read the papers, look at the advertisements, talk to the dealers, and I just discover there is not house in found that I can afford because there's just not kind of housing around.
Now, it make some difference out of it and your reasoning want to live with Penfield is close to some work that you pick -- suppose to a job.
Mr. James H. Hartman: That's right.
Justice Byron R. White: And you save a lot of gasoline and it's -- you got good schools there.
You think there is no standing for him to attack the ordinance?
Mr. James H. Hartman: On the --
Justice Byron R. White: You may never win and they may never win --
Mr. James H. Hartman: Well, under the facts you've given me, no.
Unless an allegation is made --
Justice Byron R. White: -- to find some houses and I couldn't find any because there's any that I can afford in town, and that's --
Mr. James H. Hartman: Not --
Justice Byron R. White: They maybe a terrible cause of action that -- how about standing?
Mr. James H. Hartman: I don't think you have it.
I think, however, you would have standing --
Justice Byron R. White: But if you did, some of these individuals would have here?
Mr. James H. Hartman: Excuse me, Your Honor.
I'm sorry, I didn't hear that.
Justice Byron R. White: If that would suffice for standing, then some of these individuals would have standing.
Mr. James H. Hartman: I don't know, I don't think they've gone that far.
Justice Byron R. White: They didn't even go to Penfield.
Mr. James H. Hartman: That's right.
They didn't even go to that far, Your Honor, and I don't think -- I think if you said I can't find housing in Penfield because I've been -- because I try to buy this property and the owner told me I'm not going to sell it to you because I don't like United States Supreme Court Justices or I don't like your color or you race, for that, you have a cause of action, you have standing.
Justice Byron R. White: I know what had happen to that cause of action.
Mr. James H. Hartman: Thank you very much, Your Honor.
Justice Lewis F. Powell: May I ask the question.
In the complaint, one of the reliefs sought is to compel the defendants to enact a non-exclusionary zoning ordinance.
I know I'm asking you ma'am.
Rebuttal of Emmelyn Logan-baldwin
Ms Emmelyn Logan-baldwin: Thank you.
Justice Lewis F. Powell: Are you serious about that you want an injunction compelling the city council to enact the law?
Ms Emmelyn Logan-baldwin: Your Honor, I think again, the question here is standing.
The lower court would be the province of the lower court to direct the appropriate relief if the injunction is granted and the declaratory judgment's granted and the zoning ordinances declared unconstitutional, there might not be any need for any further relief because the building could take place and the exclusionary barriers that exist would be eliminated.
Justice Lewis F. Powell: There are some cities without any zoning laws at all.
Ms Emmelyn Logan-baldwin: That would be true, Your Honor.
Justice Lewis F. Powell: Houston, Texas.
Ms Emmelyn Logan-baldwin: I think again the focus and the question for this Court is standing.
Have these plaintiffs, these petitioners alleged injury in fact and I think the real problem with the argument of the defendant-respondents is that they are focusing as if there had been a full trial on the merits, as if we had aired all of the ramifications of the zoning ordinance.
We have had opportunity to do so.
All of the low income minority petitioners as is confirmed in the record have actively sought to live in the Town of Penfield.
Mr. Ortiz of course didn't go to the Zoning Board of Appeals because he never had an opportunity to have either a rental or purchase property in the Town of Penfield.
Justice Thurgood Marshall: I understand that Ortiz did try to put up anything at all.
Ms Emmelyn Logan-baldwin: No, that's not correct.
He indicates in his affidavit that he search in Penfield for housing.
He finally had to move to Waylon, New York and resides in Waylon.
Justice Thurgood Marshall: Board at Penfield or any other place in the state did he apply for relief.
Ms Emmelyn Logan-baldwin: Well, he didn't go to the Zoning Board of Appeals, he look for houses --
Justice Thurgood Marshall: Did he apply to any state board?
Ms Emmelyn Logan-baldwin: Not any state board.
Justice Thurgood Marshall: City board or any other official?
Ms Emmelyn Logan-baldwin: No, and no ordinance --
Justice Thurgood Marshall: Is that true it's been implied to any official of any kind?
Ms Emmelyn Logan-baldwin: And no ordinary individual would have any relief to go to Zoning Board of Appeals to ask them to give him a particular house or anything like that.
He as a person trying to find housing simply went to look, and there is none such there.
The injury he suffers as a consequence is the extraordinary commuting to and from its job in Penfield.
The living in an environment which is subject or which has poorer schools, which has less community services and so forth.
These are real injuries I submit.
The type of injuries that this Court --
Justice William J. Brennan: (Voice Overlap) Again, Mrs. Baldwin, I think you have said indirectly that there are folks here who own or have options upon.
Ms Emmelyn Logan-baldwin: There have -- there are in the record, builders applications --
Justice William J. Brennan: That is among the plaintiffs in this suit or the applicants for --
Ms Emmelyn Logan-baldwin: They are members of organizations who are plaintiffs Your Honor.
And I submit that --
Justice William J. Brennan: Can you name particularly?
Ms Emmelyn Logan-baldwin: The Penfield Better Homes is a member of the Housing Council which is a plaintiff, and Rochester Home Builders have constructed 80% of the housing in the Town of Penfield over the last 15 years.
Justice William J. Brennan: Does that one owned or have options upon land in the county?
Now, that the record does not clearly direct itself to and there's a reason for it, Your Honor.
At the time of the defendant's motion, Rochester Home Builders have not yet in move to intervene.
There was actually no written opposition on the part of the town to the home builder's application to intervene.
So, there were no responding affidavits coming from the intervener to particularize or to expand upon their general allegations that they have a numerous occasions applied for relief from the zoning ordinance, but the town has in each occassion refused.
That again Your Honor --
Justice William J. Brennan: How about any of the individual plaintiffs.
Ms Emmelyn Logan-baldwin: The individual plaintiffs again are represented through associational efforts.
Justice William J. Brennan: But do some of them, some of the individuals whether represented parties or represented by other parties?
Are there such according to this record will actually owned land or have options upon land?
Not of the low income minority plaintiffs owned or have options, Your Honor.
Thank you Your Honor, I believe my time --
Justice William H. Rehnquist: Does Rochester Home Builders itself engaged in construction, or is it a trade association whose members engaged in construction?
Ms Emmelyn Logan-baldwin: It is primarily trade association whose members engaged in construction, but it has as its purpose which is set forth in the record to facilitate the construction of housing for the entire community including low moderate income housing.
Justice William H. Rehnquist: Well, you say it's primarily on an association -- does it secondarily engaged in construction itself?
Ms Emmelyn Logan-baldwin: No, Your Honor, not to my knowledge and I don't think the record discloses that it has.
Chief Justice Warren E. Burger: The case is submitted.