495 F.

2d 1187

Robert WARTH, Individually and on behalf of all other

persons similarly situated, et al., Plaintiffs-Appellants.
v.
Ira SELDIN, Chairman, et al., Defendants-Appellees.
Nos. 139, 144, Dockets 73-1748, 73-1749.

United States Court of Appeals, Second Circuit.

Argued Nov. 27, 1973.
Decided April 18, 1974.

Emmelyn Logan-Baldwin, Rochester, N.Y. (Frank A. Aloi, Robinson,

Williams, Robinson & Angeloff, Rochester, N.Y., on the brief), for
plaintiffs-appellants Warth, Reichert, Vinkey, Harris, Ortiz, Broadnax,
Reyes, Sinkler, and Metro-Act of Rochester, Inc.
Michael Nelson, Rochester, N.Y., and Richard Wesley, on the brief, for
plaintiff-appellant Housing Council in the Monroe County Area, Inc.
Sanford J. Liebschutz, Rochester, N.Y. (Liebschutz, Rosenbloom &
Samloff, Rochester, N.Y., on the brief), for intervenor-appellant
Rochester Homebuilders Ass'n, Inc.
Douglas S. Gates, Rochester, N.Y. (Harris, Beach & Wilcox, Rochester,
N.Y., on the brief), for defendants-appellees.
The National Committee Against Discrimination in Housing (Norman C.
Amaker and Mollie W. Neal, Washington, D.C., on the brief), filed a brief
as amicus curiae urging reversal.
Before MOORE, HAYS and TIMBERS, Circuit Judges.
HAYS, Circuit Judge:

Appellants brought this suit as a class action against the appellees, the Town of
Penfield, New York, and the members of as Town Board, Town Planning
Board, and Zoning Board. The complaint alleged that the town's zoning laws,

on their face and as applied, violated appellants' rights under the first, ninth,
and fourteenth amendments to the Constitution of the United States and 42
U.S.C. 1981, 1982, and 1983. The district court dismissed the complaint for
lack of standing and failure to state a claim upon which relief could be granted
and denied appellants class action status. The court also denied a motion by the
Rochester Homebuilders Association, Inc., to intervene as a plaintiff.
2

We affirm on the ground that appellants lack standing.

I. FACTS

Accepting appellants' factual allegations as true, as we must, we find the

following facts relevant. The Town of Penfield is a suburb of Rochester. Its
zoning laws are fairly typical for a suburban community. The town has zoned
90% Of all vacant land for single family detached housing. The ordinance also
fixes minimum lot sizes, floor areas, lot widths, and setbacks for dwellings.
Where the ordinance does permit multi-family dwellings, it limits density to
twelve units per acre, limits the portion of the lot which may be occupied by
the dwelling, and requires a minimum number of garage and unenclosed
parking facilities for each unit.

The ordinance provides for Planned Unit Developments (PUD), which may
contain a mixture of single-family and multi-family units. A substantial part of
each PUD must be reserved for single-family dwellings with specified
minimum acreages.

Appellants' complaint goes beyond the face of the town's zoning laws and
further alleges certain affirmative acts which it claims deprived them of their
rights. These acts involve various proposals by builders for multi-family
housing in Penfield. One Joseph Audino on several occasions proposed a PUD
for a site known as Beacon Hills. The Town Planning Board first denied the
proposal, then accepted it with certain modifications which reduced the
permissible density. The Town Board first accepted the proposal with the
modifications, then rescinded the necessary rezoning. The town apparently
claims that sewer facilities in the district are inadequate to serve the proposed
development. The builder now plans to pump sewage to another district.
Neither the builder nor anyone associated with him is a plaintiff in this action.

Penfield Better Homes, Inc., has proposed a project known as Highland Circle
for 'low moderate income housing.' In September 1969 the Planning Board
denied the proposal on a number of grounds. The corporation is not a plaintiff

nor associated with any plaintiff in this action.1

7

A proposal by O'Brien Homes, Inc., to build apartment housing was originally

denied. The Planning Board has yet to act on a modification of the same
proposal.

Appellants also refer to several other proposals for apartment housing which
have met with little success. They claim that only two proposals for PUDs have
passed the first stage of the necessary three stages of approval. In no case do
appellants allege any involvement in these proposals.

Appellants argue that the Penfield zoning laws, on their face and as applied,
violate their rights in a number of ways. First, appellant taxpayers of Rochester
claim that because of Penfield's zoning laws the City of Rochester must assume
more than its 'fair share' of low income, tax abated housing property, thereby
shrinking Rochester's tax base and forcing property owners in Rochester to pay
higher property taxes.2 Second, appellants claim that Penfield's zoning
practices unconstitutionally bar low and middle income persons, especially
members of racial minority groups, from residing in Penfield.3
Intervenorappellant Rochester Homebuilders Association, Inc. claims that the
town's zoning practices have deprived its members of the opportunity to
construct housing for low and middle income persons, thereby harming the
association's members financially.

10

Appellants seek a declaratory judgment that Penfield's zoning practices are

illegal, an injunction against enforcing the zoning ordinance, an injunction
compelling enactment of an acceptable ordinance, and monetary damages.
II. STANDING

11

Although the Supreme Court has discussed standing to sue on many occasions,
certain aspects of the doctrine continue to present difficulties. Moreover, during
the last few years the Court has revolutionized the law of standing. In
Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S.
150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970), and Barlow v. Collins, 397 U.S. 159,
90 S.Ct. 832, 25 L.Ed.2d 192 (1970), the Court announced a twopronged test of
standing: the plaintiff must allege an 'injury in fact,' and must seek to protect an
interest 'arguably within the zone of interests to be protected or regulated by the
statute or constitutional guarantee in question.' Data Processing, supra, 397 U.S.
at 152-153, 90 S.Ct. at 830. However, the Court has not explained what
constitutes an 'injury in fact.' See Dugan, Standing to Sue: A Commentary on

Injury in Fact, 22 Case W.Res.L.Rev. 256, 258 (1971). Moreover, reliance on

precedents is especially hazardous in this area. As the Court remarked in Data
Processing, 'generalizations about standing to sue are largely worthless as such.'
397 U.S. at 151, 90 S.Ct. at 829. The Court has laid down some rules in certain
areas, such as taxpayer, competitor, and environmental suits. Except for
appellants who claim standing as taxpayers, however, these rules are not very
helpful here.4
12

Standing is an element of justiciability, 'surrounded by the same complexities

and vagaries that inhere in justiciability.' Flast v. Cohen, 392 U.S. 83, 98, 88
S.Ct. 1942, 1952, 20 L.Ed.2d 947 (1968).

13

The gist of the question of standing is whether the plaintiff has 'alleged such a
personal stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the court so
largely depends for illumination of difficult constitutional questions.' Baker v.
Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). See also
O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974);
Flast v. Cohen, supra, 392 U.S. at 99, 88 S.Ct. 1942.
A. Appellant Taxpayers of Rochester

14

Appellants Vinkey, Reichert, Warth, and Harris own land within the city of
Rochester. They claim that the Penfield zoning laws exclude low and moderate
income persons, thereby requiring Rochester to permit moe than its 'fair share'
of tax-abated housing projects. This shrinks the tax base of Rochester, which
then must impose higher tax rates on appellants and others similarly situated in
order to meet its fiscal needs.

15

As a general rule the interests of a federal taxpayer in federal expenditures are

too 'minute and indeterminable . . . fluctuating and uncertain' to provide a basis
for standing. Frothingham v. Mellon, 262 U.S. 447, 487, 43 S.Ct. 597, 601, 67
L.Ed. 1078 (1923). The rule applies equally to state taxpayer suits in federal
courts. Doremus v. Board of Education, 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed.
475 (1952). In Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942 (1968), the Court
created an exception to the rule: a federal taxpayer may contest measures
alleged to violate 'specific constitutional limitations imposed upon the exercise
of the congressional taxing and spending power.' Id. at 103, 88 S.Ct. at 1954.

16

Appellants do not allege a violation of a 'specific constitutional limitation' on

taxing and spending. Indeed, they do not even allege that Rochester's taxes or

expenditures are unconstitutional. They allege only that certain acts of appellees
which do not involve taxing or spending have operated to raise their taxes.
17

In Flast the Court stated that its decision was 'consistent with the limitation
upon state-taxpayer standing in federal courts in Doremus . . ..' 392 U.S. at 102,
88 S.Ct. at 1954. Certainly if taxpayer standing was not justified in Doremus
because plaintiff's interest was too remote, standing cannot be found here,
where there is such an attenuated line of causation between the allegedly illegal
acts (Penfield's zoning laws) and the injury of which appellants complain
(higher property taxes). A great variety of actions taken by a state or a
municipality might arguably affect the rate of taxation in other states or towns.
This hardly gives taxpayers in the affected states or towns standing to contest
all such actions.5

18

B. Individual Appellants Claiming Standing on Other Grounds

19

Appellants Broadnax, Sinkler, and Reyes are blacks and Puerto Ricans of low
income who reside in Rochester. Each has sought but failed to obtain housing in
Penfield. They allege that Penfield's zoning laws effectively bar low income
housing within the town and therefore exclude them and persons similarly
situated from living in Penfield. Appellant Ortiz lives in Wayland, New York,
and works in Penfield. He makes the same allegations as appellants Broadnax,
Sinkler and Reyes, and in addition claims as injury the commuting expenses he
incurs because he cannot live in Penfield.

20

None of the appellants claims that anyone has refused to sell or lease housing or
property to him. Indeed, appellants concede that they cannot afford any existing
housing within the town. They do not claim to have any interest in land within
the town or any connection with any plan to construct housing for them within
the town.

21

The Supreme Court has not established guidelines as to what constitutes an

injury in fact for purposes of standing in this area. Nor have the lower federal
courts, in this circuit or otherwise, considered the specific issue raised here.
Appellants cite several federal cases in which a party was held to have standing
to challenge zoning on civil rights grounds. In most of these cases the party
attacking zoning had an interest in land.6 A few cases in other circuits have
taken a short step beyond this. In Park View Heights Corp. v. City of Black
Jack, 467 F.2d 1208 (8th Cir. 1972), and Dailey v. City of Lawton, 425 F.2d
1037 (10th Cir. 1970), developers contested zoning which prevented them from
building low income housing projects on parcels of land which they owned. In

both cases the court permitted potential residents of the proposed projects to
join as plaintiffs. Without deciding whether we approve these holdings, we
note that the standing of potential residents in these cases presents an issue very
different from the one presented here. The focusing of the controversy on a
particular project assures 'concrete adverseness.' The concrete possibility of
obtaining new and better housing gives potential residents a personal stake in
the outcome. The relief requested is not hypothetical.
22

The requirement of standing helps to insure that 'the questions will be framed
with the necessary specificity . . . to assure that the constitutional challenge will
be made in a form traditionally thought to be capable of judicial resolution.'
Flast v. Cohen, 392 U.S. 83, 106, 88 S.Ct. 1942, 1955 (1968). See also Barlow
v. Collins, 397 U.S. 159, 167, 171, 90 S.Ct. 832 (1970) (Brennan, J.,
concurring). In the instant case appellants cannot establish this specificity and
the necessary 'concrete adverseness.'

23

The doctrine of standing also turns on whether the party in question has a
'personal stake in the outcome of the controversy.' O'Shea v. Littleton, 414 U.S.
488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974); Sierra Club v. Morton, 405
U.S. 727, 732, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972); Baker v. Carr, 369 U.S.
186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). Appellants lack such a personal
stake. The essence of their complaint is that the zoning practices of the
appellees are unfair. However true that charge may be, absent showing that
appellants themselves have suffered from these practices they lack standing to
challenge them. Their dispute with agellees reflects primarily a position
disgruntlement. They indicate no benefit which a judgment favorable to them
would produce. They allege neither capability nor intent to construct housing
for themselves on any land which the court might order rezoned as an element
of relief.

24

Indeed, appellants' prayer for relief domonstrates their lack of personal stake in
the outcome and their lack of standing. They request equitable relief in the form
of a declaration that the Penfield zoning ordinance is unconstitutional, an
injunction against enforcing it, and an injunction requiring enactment of a new
ordinance. Granting this relief would not clear roadblocks to currently planned
housing which appellants hope to occupy. It would not benefit appellants in any
way in the foreseeable future. The prayer for relief also illustrates the lack of
specificity. Appellants request neither zoning of any particular parcels nor
approval of any specific projects.

25

In O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669 (1974), plaintiffs brought suit
alleging that defendants, various judicial and law enforcement officials of

Alexander County, Illinois, were administering the county's criminal justice

system in a discriminatory manner so as to deprive all black and some white
citizens of a variety of constitutional rights. The Supreme Court held that
plaintiffs had failed to state an Article III case or controversy. 94 S.Ct. at 675.
The Court's opinion noted that the complaint 'allege(d) injury in only the most
general terms' and that 'none of the named plaintiffs is identified as having
himself suffered any injury in the menner specified.' Id. at 676. The threat of
injury to the named plaintiffs was too 'abstract,' 'conjectural,' and 'hypothetical'
to give them a 'personal stake in the outcome.' Id. at 675.
26

Here we have a similar case. Appellants alleged that appellees' zoning practices
deprive low income minority groups of equal protection. However, none of the
named plaintiffs has suffered from any of the specific, overt acts alleged. Thus
appellants' personal connection with these practices is too abstract, conjectural,
and hypothetical to establish an Article III case or controversy.

27

C. Metro-Act of Rochester, Inc.

28

Appellant Metro-Act of Rochester, Inc., is a non-profit corporation whose main

purpose is 'to alert ordinary citizens to problems of social concern.' Low income
housing is one area to which the organization has directed its attention.
Appellant claims standing on a number of grounds, none of which is adequate.

29

First, appellant claims standing because of its 'special interest' in housing

matters. The Supreme Court's decision in Sierra Club v. Morton, 405 U.S. 727,
735-740, 92 S.Ct. 1361 (1972), rejected this as a basis for standing.

30

Second, Metro-Act claims standing as a taxpayer of the city of Rochester. This

approach fails for the same reasons stated above with respect to individual
taxpayer appellants.

31

Third, appellant claims standing as representative of its low income members

who seek housing in Penfield. Since we have decided that these individuals
lack standing, the organization cannot derive standing from them.

32

Fourth, Metro-Act claims standing on the ground that one director of Penfield
Better Homes is one of its members. We have decided that membership of
Penfield Better Homes in Housing Council does not suffice to confer standing.
(See discussion, infra.) It follows that membership of a director in Metro-Act
certainly cannot confer standing.

33

Finally, relying on Trafficante v. Metropolitan Life Insurance Co., 409 U.S.

205, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972), Metro-Act claims standing as
representative of its members who live in Penfield.7 In Trafficante the
plaintiffs, tenants of an apartment complex, challenged the allegedly
discriminatory rental practices of their landlord. They claimed as injury the loss
of social, business, and professional benefits of living in an integrated
community and embarrassment of being stigmatized as living in a 'white
ghetto.' They based their claim of standing on section 810(a) of the Civil Rights
Act of 1968, 42 U.S.C. 3610(a), which gives standing to 'any person who
claims to have been injured by a discriminatory housing practice . . ..' The
Supreme Court held that plaintiffs had standing.

34

Trafficante is distinguishable from the present case. We have emphasized that

generalizations about standing are largely useless. This is especially true of a
case which focused on the peculiarities of one piece of legislation. The Court in
Trafficante looked to the legislative history and administrative interpretation of
section 810(a). 409 U.S. at 210, 93 S.Ct. 364. The Court also considered the
practical difficulties of enforcing the Act and concluded that Congress must
have intended persons in plaintiffs' position to be able to sue as private
attorneys-general. Metro-Act has presented us with no similar factors in this
case.

35

The concurring opinion of Justice White, joined by Justices Blackmum and

Powell, further suggests that the holding of Trafficante should apply only to
cases under the Civil Rights Act of 1968. Justice White expressed doubt that, in
the absence of section 810(a), the suit would present an Article III case or
controversy. 409 U.S. at 212, 93 S.Ct. 364. The six remaining justices
explicitly declined to consider whether plaintiff might also have standing under
42 U.S.C. 1982. 409 U.S. at 209 n. 8, 93 S.Ct. 364. The reasoning of the
majority opinion and the explicit statement of the three concurring justices
strongly indicate that a majority of the Court would not find standing for MetroAct on this basis.

36

D. Housing Council in the Monroe County Area, Inc.

37

Housing Council in the Monroe County Area, Inc., is a non-profit corporation

whose purpose is to 'combat community deterioration through the elimination
of racial and economic discrimination in housing.' Its membership includes
public and private agencies and organizations seeking to improve the housing
of persons of low and moderate income. Plaintiffs below moved to add Housing
Council as a party plaintiff. The district court held that Housing Council lacked

standing. We agree.
38

Housing Council alleges no injury in fact to itself. To the extent that it bases
standing on representation of various groups of residents in the metropolitan
Rochester area, its claim fails for the same reasons given in our discussion of
other appellants.

39

Housing Council also claims standing because Penfield Better Homes Corp.,
one of its members, has been denied approval of a specific housing project
proposal. We note first that if this allegation conferred standing on appellant it
would confer only that standing which its member would have had. Housing
Council has not indicated that it limits its suit to the dispute over the proposal of
Penfield Better Homes. Rather it joins in the more general and abstract claims
of other appellants.

40

We think that Housing Council lacks standing to vindicate even the more
limited claims which Penfield Better Homes might have against appellees. It is
highly doubtful that an organization has standing to represent its members in
most cases under the Civil Rights Act. See Aguayo v. Richardson, 473 F.2d
1090, 1098-1101 (2d Cir. 1973), cert. denied 414 U.S. 1146, 94 S.Ct. 900, 39
L.Ed.2d 101 (1974). Certainly the special circumstances favoring
organizational standing in cases like NAACP v. Alabama ex rel. Patterson, 357
U.S. 449, 458-460, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958), and NAACP v.
Button, 371 U.S. 415, 428-429, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963), are absent
here. Alleged specific harm is limited to a single member. There is no reason
why Penfield Better Homes cannot assert its own rights as well as or better than
Housing Council.

41

Housing Council therefore lacks standing.

42

E. Rochester Homebuilders Association, Inc.

43

Rochester Homebuilders Association, Inc., is a nonprofit trade association of

persons and companies engaged in various phases of the residential
construction industry in the metropolitan Rochester area. In the court below the
association moved, pursuant to Fed.R.Civ.P. 24(b) to intervene as plaintiffs in
this action. The district court denied the motion on the grounds that the
association lacked standing and that its intervention would create undue delay
or prejudice. We agree that the association lacked standing and do not reach the
Rule 24(b) issue.

44

As we noted above, an organization may have standing to assert the rights of its
members where there are special circumstances. The rule applies to trade
associations as well as to other organizations. National Motor Freight Traffic
Ass'n v. United States, 372 U.S. 246, 83 S.Ct. 688, 9 L.Ed.2d 709 (1963)
(percuriam). We find no such special circumstances here.

45

Moreover, as we noted above with respect to appellant Housing Council, an

organization seeking to assert rights of its members has only that standing
which its members would have had. Rochester Homebuilders has not tied its
claim of standing to specific acts of appellees which have affected its members.
Instead it makes the same claims as other appellants. The members of the
association would not have standing to raise these claims. The association
cannot derive such standing from them.

46

Affirmed.

Penfield Better Homes is a member of appellant Housing Council in the

Monroe County Area, Inc. However, this does not suffice to give Housing
Council standing. See discussion of Housing Council, infra. Appellants also
allege that one director of Penfield Better Homes is a member of appellant
Metro-Act of Rochester. This even more clearly fails to confer standing. See
discussion of Metro-Act, infra

These appellants also claim that appellees deprive them of a fair share of their
federal tax dollars by refusing to permit federally financed housing in the town

Appellants also claim that appellees' practices violate their right to travel under
the first, ninth, and fourteenth amendments and their right of peaceable
assembly under the first and fourteenth amendments

In Data Processing the Court acknowledged the limited authority of standing

cases from one area in relation to cases in other areas:
'Flast was a taxpayer's suit. The present is a competitor's suit. And while the
two have the same Article III starting point, they do not necessarily track one
another.' 397 U.S. at 152, 90 S.Ct. at 829.

Appellants also base a claim of standing on their status as federal taxpayers. See
note 2, supra. This claim does not attack a spending measure of Congress and is
not based on a specific constitutional limitation on spending. The claim
therefore fails

In Kennedy Park Homes Ass'n, Inc. v. City of Lackawanna, 436 F.2d 108 (2d
Cir. 1970), cert. denied, 401 U.S. 1010, 91 S.Ct. 1256, 28 L.Ed.2d 546 (1971),
the Diocese of Buffalo had committed itself to sell thirty acres of land it owned
in Lackawanna to Kennedy Park Homes for low-income housing. Both the
Diocese and the Association clearly had an interest in land
In Township of River Vale v. Town of Orangetown, 403 F.2d 684 (2d Cir.
1968), this court held that plaintiff town had standing to sue defendant town
which had rezoned property adjoining plaintiff on the allegation that the zoning
was arbitrary and capricious and would injure plaintiff by reducing its
revenues. We held that plaintiff need not be a resident of the town whose
zoning practices were challenged. Id. at 686. We did not abandon the
requirement, which plaintiff clearly met, that a party have a personal stake in
the outcome. The holding reflects the obvious point that landowners may be
affected by the zoning of adjoining properties, and that this interest suffices to
confer standing. Cf. 3 K.C. Davis, Administrative Law Treatise 22.16 at 283
(1958).
Neither Boraas v. Village of Belle Terre, 476 F.2d 806 (2d Cir.), prob. juris.
noted, 414 U.S. 907, 94 S.Ct. 234, 38 L.Ed.2d 145 (1973), nor Norwalk CORE
v. Norwalk Redevelopment Agency, 395 F.2d 920 (2d Cir. 1968), involved the
kind of standing issue presented here. In Boraas we granted standing to
unrelated persons living together in an apartment to challenge an ordinance
limiting the right of unrelated persons to live in the same dwelling. In Norwalk
CORE persons displaced by urban renewal had standing to challenge the city's
procedures in relocating them. In each case plaintiff's personal stake was clear.
In most of the civil rights challenges to zoning in other circuits plaintiffs also
had some interest in land sufficient to warrant standing. See Southern Alameda
Spanish Speaking Org. v. City of Union City, 424 F.2d 291 (9th Cir. 1970);
Sisters of Providence v. City of Evanston, 335 F.Supp. 396 (N.D.Ill.1971);
Crow v. Brown, 332 F.Supp. 382 (N.D.Ga.1971), aff'd, 457 F.2d 788 (5th Cir.
1972) (per curiam).

Appellants' complaint did not include residents of the Town of Penfield as a

class which they purported to represent. Metro-Act has, however, made this
claim on appeal