# Brief for Respondent — Gart v. Cole > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA04386419_0796%3A5 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for Respondent - **Published:** January 1, 1959 - **Citation:** 359 U.S. 978 ## Text UMiCe-supre ne Court. US. F FD FILE ‘copy Ix THE | > ) SR BRL Nive. Clers Supreme Court nf the. Anited eee ‘Octoper Term, 1958 No 771 + WILLIAM GART, ADA BASS, HARRY MYERS, SOPHIE BERGMAN, GEORGE KAY, d/b/a Lorie Press, WILLIAM LOE Re -R, HOWDI- ' BON GARAGE CO, INC, SCHUCKMAN PRESS, INC. 145447 W 6lst CORPORATION, individually: 3 and gn behalf of all others ‘sumilarly situated, ° ‘ . he “titiomers, . ed ‘ALBERT M COLE. as Administrator, Federal Housing and Home Finarice Agency; WALTER S FRIED, as Regional Acosta, Remon 1, Feder?! tlousing and. Home Finance Agency ; CITY OF NEW YORK; , eROBE RT F. WAGNER, individually and ay Mayor of the City of New * York and a member of the Board of bstumate ; ABE STARK, individually and as President of the City Couneil of the City of vew York and a mem- ber of the Board of Fstumate;. HUL AN E TACK, individually and as » Present of the Borough of M anhattan, C ity ot New York, and a member of the Board of Estimate; JAMES | LYONS, individually and as Presi- dent of the Borough of Bronx, City ot New York, and a member of the ‘ Hoard ot Estimate; TORN ¢ ASH MORE, individually and as President ot ‘the Borough of Brooklyn, ity ot New York, and a member of the Board { ot Esumate; TAMES J. -CRISONA, madividually and as Président of the Bowough of Queens, City of New York, and a member of the Board ot - Estumate; AL “BERT VM ANISC ALCO. yndividually: and. as, President: of She Korough of Richmond, C ity of New York, and a ‘member of the Board ‘ * ot bstumate; ROBERT MOSES, idividuallysand as Chairman of the Com- mittce on Slum Clear: ance of the City ot Net York FORDHAM UNI- VERSITY: LINCOLN CENTER. FOR THECPERFORMING ARTS; INC; ahd WERB & KNAPP LINCOLN SQEYRL CORPORATION, \ Respondents Be SE Me \ ; ON PETITION FORA WRIT OF CERTIOR. JRE TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT . BRIEF FOR RESPONDENT WEBB & KNAPP LINCOLN SQUARE. CORPORATION. y . IN OPPOSITION \ — ——. —-———_ --—- — - -— -——: ——— — ‘ I Sameer 1, RoseNMAN 573 Madison Avenue, New York e2. New York : Attorney for Respondent ¢ : S Webb & Knapp Lincoln : Square C or poration. Of Coun sel: ¥ Max FREUND ' MM JekomMe L. SInDLER . re NLAWRENCE BL BUTTENWIESER , 375 Madison Avenue New. York 22, New York. : PAGE Opinions ‘Below ..::...0... CONEY er eee or Jurisdiction ! peer ‘ete dege e's Bi ad ula cies ok ye Constititional, and Statutory Provisions heiies .. 2 Questions Presented. ... * Peace ea tes “3 er pues ane Statement eS Ree eee Gree itachi papa ee Argument seen eb eee eteeees eels eben enna tes 4 a use of federal funds for the Lincoln ° Square Project does not raise & substantial . federal question ..:.... deve dd meeecekecinks ae 4 II—'Fhe decision of the Court of Appéals herein permitting the use of federal funds for the Lin- ~~ coln Square Project does: not conflict with the applicabfe decisions of this COMME oe ccaesces: 11 ‘Conclusion .....: Gb sep eeesieemerboneesene Cee aa ee es . vasccame Cases: : ; ries Berman v. Parker; 3g U. s. 26. EAA cee nce 9,10 Burt v. Pittsburgh sa) Us 8: B08 Reel hcg 8 on v. Peoria Howliag. , 399 Il. 579, 78. ; »N. E, 2d + ee re Pekan AT txhe ewe ‘15 Everson v.. Board of Education, $30 U. B. 1 ....... Ps 12 Fi Toeller v.: Miiisiag Authority of Portland, 198 Ore.,’ * 205, 256 P. ns since ia a eee ogee et 3 ee Be Ne / 327 U. S. OE iis soca auR Ko Teerr ee Velishka v. City of Nashua, 99 N. H. 161, 106 A. 2d pap OTL... 2. eee. BR cceeveecenesceecedenecasssneegbe | Borach v. tiem 343 U. S, “eee . ‘STaTUTEs: . ; * Bitle 26 U. B.C. §19E oo. scape desc as eeewes | Harris, et al. v. City of New York, « al., 357 U. S. : “Kaskel Impellitteri, 306 N.-Y. 73, 115 N.. -E. 2d. 659, ii A . ._ INDEK PAGE Gohld ete: ‘Co. v. City of Hartford, 141 Wonn. 135, ; ; 104 A. 2d 365 ..- =." Masten PTL tii treet ~ 907 a denied, Hi Wh a Se, cca kek bec ocean 64th Street Résidences, lee val v. City of New - York,’et al., 4.N. Y. 2d 268; 150 N. E. 2d 396, cert. denied sub nom. Harris, et al. v. City of New *. York, et al., 357 U:S. 907 73... kines 5 een 3,691 Site v. Land Clearance, ete., , 364 Mo. 974, 270.8, W. oa tt ane Cuskaghanentds s5ccan be akedneee : U0: 8. ex rel Tennessee Valley Authority v. Welch, District of Columbia. Redevelopment Act of 1945, 60 Stat. 790; D. C. Code, 1951, Title 5, 9) 5-701— 5-719 . Mis caodes feeeeeses - seccctccceedosess . IN THE ' Supreme Court of the United States ' individually and as Mayor of the City of New York and Ocroser TERM, 1958 A 4--—-- No. 771 . Bg Wituam Garr, Apa Bass, ‘Harry Myers, Sopuie BaromMan, Grorce Kay, d/b/a Lorie Press, Witiiam LOEBNER, Howpison Garage Co., Ixc., ScHUCKMAN Press, Inc., 145-147 W. 61st Corporation, individually and on hehalf - of all others similarly situated, Aim, 2s Petitioners, © v ; Auserr M. CoLz, as Administrator ‘ “ ing for public uses in conformity with.its laws, U.S. ex rel.- Tennessee Valley Authority.v. Welch, 327 U. S. 546, 55 this Court should not look to the circumstances surround. ing the re-use of an area to be cleared of. slums. ane In Harris v. City.of NewYork, supra as in this case— we opposed, the petition for a writ of ¢ertiora#i on the ground that the circunistances surrounding the re-use of the Lincoln Square Project'were irrelevant in ‘determining _ the validity of the Project (brief in opposition to petition for certiorari, October Term, 1957, No. ‘1014, pp. 6-8) and, as noted above, this -‘ourt denied that petition. _ Our position finds further’ support in the decisions of this Court in Burt v. Pittsburgh, 340 U. S. 802, and Berman v. Parker, 348 U. S. 26. a In the Burt case, this 5 Court affirmed, on the. authority of the Welch case, supra, the judgment of a three-judge Dis- trict Court which refused to look beyond the condemnation . of a siffim area to the character of the re-use. - In the Berman case, this Court, in affirming the dismissal by a three-judge District ‘Court of an action seeking to en- join a Washington; D. C. Title 1 project, refused to look to the circumstances of .re-use as a ground for invalidating : the project. | This Court stated that the object—slum clear- ance—was within the power of Céngress to attain and that ‘‘fojnce the object is within the authority of C ongress, the means by which it.will be attained is dlso fot Congress to ‘.determine’’ (348 U.S, at 33). ~ ° : . : : (c) : Third, asswuing, arguendo, that the circumstances sur- rounding the re-use of a slum clearance area are relevant sin determining fhe validity of a slum clearance project, we submit that the‘use of federal funds for the Lincoln Square . « Project does not raise a substantia! federal question under the ‘‘establishment of religion”’ clause in view of Berman v. Parker, supra. ‘eh r " 36. — In the Berman case, this Court, -in upholding the consti- tutionality of the District of Colambia Redevelopment Act of .1945,° clearly indicated that a £eligious institution may participate in a Title.1 projeet. The Court said of the « Title I project there. challen ed (348 U.S: at 34-35): “The entire area neéded redesigning so that a bal- anced, integrated /plan could be developed’ for the ‘region, eclaiiea not only new homes but also schools, _ churches, papks, streets, and shopping centers. In this i hoped that the cycle of decay of -the area “controlled and the birth of future slums’ Pre. * *-*. Such diversification’ in future use ts inly relevant to’ the maintenance of the desired ousing standards and therefore within’ congressional . power.’’ (emphasis supplied) Petitioners themselves admit that this allegedly substan- tial federal question may have been settled by the Berman. - case. Petitioners state (petition, p. il): ; | etitioners do not believe that the question presented has ever been settled by this Court unless that portion of the-opinion in Berman v. Parker, 348 U. S. 26, 3+ 35, which states that it-was within the power of Con- ‘gress to authorize the District of Columbia Land Re- peta 3 Ageney to attack the problem of Slum Clearang? on an area or regional basis and to redesign the area “so that a balanced integrated plan could be developed for the region, including not only new houses but also schools, churches, parks, streets and shopping centers’, may be taken to mean that churches (and /othef religious institutions) may,participate as urban ' redevelopers, and pay less than market value, or even nothing, for the land which they redevelop.”’ * 60 Stat. 790 4D. C. Code, 1951, Title 5, §§ 5-701—S-719. ¥ al ll — II ‘The decision of the Court ‘i Appeals herein per- mitting the use of federal funds for the Lincoln Square ‘Project does not conflict with me epee ene - of thls Cont. " Petitioners assert that. the decision of the Court of Appeals herein permitting the use- of federal funds « for the Lincoln Square Project conflicts with the decisions of this Court in Everson v. Board of Education, 330 U.S. 1; MeCollum vy. Board of Education, 333 U. S. 203; and : Lorach v. Clauson, 343 U. S. 306 (petition, pp. 9, 10). ° In those three cases, this Court ‘ruled that: cities and © ’ states may not subsidize religious. institution’, but none of . those cases conflict with the case at bar. In the Everson case, this Court, in upholding a New Sergey statute which authorized local school dist¥icts to makg rules and contracts for ‘the transportation of” chil- dren to and from pareceial oe stated (330 U..S. _ at aria de ; ‘ “The ‘establishment of religion’ clause of the First Amendment means at least this: - Neither a state nor the Federal Government can set up’a church. Neither can pass laws-which aid one religion, aid all religions, or prefer one religion over another.’ Neither can force , nor influence a person to go-to or to remain away from church against his will or foree him to profess ‘a belief or disbelief in any religion.” No person can be punished for éntertaining or professing religious beliefs or disbeliefs, for-church ‘attendance .or non- attendance. No taX in any amount,-large or small, ean be levied to support any religiqus activities institutions, what@ter thex_may be called, or whatever form they may adopt to teach or practice religion. Neither a staté)\nor the Federal Government can, openly or secr@&ly\ particfpate’ in tI® affairs of any ' religious opgamiadtions-or groups and vice versa.”’ : ee... In the McCollum case, ‘this Court, in striking -down a. ‘released time”’ program of the Champaign, Illinois, pub. . lie school system, — the language of Everson _ quoted above. - In the Zorach ease, this Court upheld a New York City ‘“‘released time’’ program because it ‘‘involves’ neither religious instruction in public school classrooms nor the expenditure of publie funds’” (343: U, §. at 308-309). " Thus, the decision of the Coprt of Appeals herein could be held to conflict with the decisions of this Court in the. Everson, McCollum and Zorach: eases, supra, only if the ~ use of federal funds for the Lincoln Square Project a: in a subsidy to-a religious institution. © Petitioners allege that the. use of ede ‘fuihds for the Lincoln Square Project results in a subsidy to a re- . ligious institution ‘(a) because Forgham is one of the redevelopers of the Project and the Title I scheme nec- essarily. results in the subsidization of the redeveloper (petition, p. 11) and. (b) because of the particular facts. underlying Fordham’s partic ipation in the Lincoln Square 4 Project" (petition, pp. 5-6, 10-11). However, we contend (a) that a redeveloper iin not reecive a subsidy by participating in a Title I project and (b) that Fordham has not received a subsidy by. as Siete in the Lincoln ‘Square Project. a a) ° The course of a Title I project is in barest outline as foilows: A municipal, agency (e.g., a city) acquires 2 ‘slum area. “The agency then either sells (or leases), of clears and sells (or leases), that area to a rede- > ae © veloper,. either at a negotiated price or after a public anc- tion, sgbject to specific re-use restrictions, _The difference between the cost of acquiring (or of acquiring and clear- ing) that area and the sales price paid by the. redeveloper é RO ao a . 2 3 for that area is shared -by ‘the agency and by the federal. * government. The redeveloper then red¢évelops that area ‘in acéordance with the redevelepment or renewal plan embodying the re-use Testrictions. : om, If a subsidy lurks anywhere ‘in the Title ‘I acheme, it * gould’ only lurk in the differential betweeti the cost of — (or of acquisition and clearance ) and the sub- sale. price. - Petitioners ‘contend that a subsidy 2 sequent Dr lurk there (petition; p. Th). om, Howeyer, every -eotr which has ikssed upon slum clear- ance projects has gejectedsthe contention that the differ- ential between the cost of acquisition (or of acquisition . and clearance) and the resale price results i in a spbsidy. That question was. sjecitcally raised by the petition for . “a writ of certiorari,in Harris v. City of New York, supra (petition, October Term, 1957, No. 1014, pp.. 14-15), and, — as noted .above, this Court t denied that petition. - _ In State v. Land Clearance, etc., 364 Mo. 974, 270 S. W. 2d 44, the. court, in determining that the redeveloper of _ the project there involved had not been subsidized, stated. (364 Mo. at 989-990, 270 S, W. Od at 53 )x “Tt would be’ difficult ‘0 imagine a ite law ~~ that exacted more from a ‘purchaser than a ‘fair value’ - price. An exaction thei the purchaser pay fair value , . eannot conceivably . lint « to a grant or subsidy. « . Both the statuteand the rtakings of respondents .. pursuant thereto so clearly dentonstrate that the pur- .° pose in acquiring the land is id it of its blighted . and insanitary condition and to: thereafter convey it . to. redevelopers for conversion to useful purposes in accordance with the redevelopment plan.’ The. great weight of authority is that there is no private grant when land is cleared for the purposes herein contem- plated and i is thereafter sold at a loss, but for its then fair. value.’ 4 14 The statute involved. | in State v. Land’ Oherance is sub. stantially equivalent to the stathtes under which the Lincoln Sqdare Project was condemned and sold, If any- thing, the Land Clearance statute was less likely to ex- tract ‘‘fair valne’” than the statutes under which the Lincoln Square Project was condemned and sod. ° In People v.,City of Chicago, 414 Ill. 600, 111 N. B. 24 626,.the court, in uphalding an IIlinois slum clearance stat- ute, stated (414 Ill. at 617, 111 N. E. 2d at 636-637) : . **Plaintiff’s assumption of a donation to Normandy Homes, Inc., the prospective developer here, is errone: ous. Section 19 does permit the Commission to sell — _ land in‘a project to a developer at ‘use value.’ : This term is defined as ‘the value at which the Commission determines such land should be’ made available in order that it may be developed or redeveloped for the * purposes specified in the plan presented,’ Sectigng. .3(1) and 14 provide that the land for blighted vacant area redevelopment projects must be developed for. ‘predominantly residential uses. The ‘use value’ will thus be the value of the land, subject to restrictions _ placed upon it by the statute and the redevelopment plan: In.this there is no donation of land to a private corporation, nor is there any loan of credit. The con- ' stitutional prohibition is not a bar to a municipality entering into a transaction where there is an exchange of fonsiderations between the parties.’’ . - Similarly, in Velishka v: City of Nashua, 99 'N. H. 161, 106 A. 2d.571, the court, in upholding a New Hampshire - slum-clearance statute, stated (99 N, H. at’ 168, 106 A. 2d * at 575-6): . , “Section 5 of the act permits the housing authority to sell or lease the land in the project area ‘at its use value’ which may be lexs than the cost of acquisi- tion, clearance and site impravements, The sale. or lease to private enterprise is required to be made + % . * . * ‘ . 15 subject to Conditions that will i insure that the. blighted ‘ or slum conditions do not return.’* * * The sale or ‘lease is not a gratuity since it is made at its use value _ a8 a means of assuring the’ redevelopment in accord- ‘ance with the redevelopment plan. Cf. Opinion-of the Justices, 95 .N. H. S48, 65-A. 2d 700. There’is no grant of public funds for * private purposes in violation of the Constitution since the housing authority may sell or lease the land only at a use value and for uses * which are consistent with the continuous use of the redevelopment in accordamee with the original public qq. Purpose and plans.’’ See also, Cremer v. Peoria Housing Authority, 399 Ill. ~ 579, 594-595, 78 N. E. 2d 276, 284-285; Foeller v. Housing . Authority of Portland, 198 Ore. 206, 236, 256 P, 2d 752, 767 ; and Gohld Realty Co, v. ed of Hartford; a4 Conn, 135, 104 A. 2d 365. Actually, far from being a subsidy, the differentigh be ) nd aS — Pie ee tween the cost of acquisition (or ‘of acquisition a clearance) to the municipal agency and the sales’ price ' the redeveloper results (a) from the fact that the acquisi- tion eost includes not only the value of the land but also value of the existing buildings which must thereafter demolished; and (b) from the fact that the recevelop- ment contract- imposes obligations and restrictions upon the redeveloper which lessen the value of the land itself. In the present case and in all other Title I .projects in New York “ity, those obligations include the relocation. of residential tenants, the removal of commercial tenan the demolition of existing buildings andthe construction of . new improventents. Those restrictions require the rede- veloper to ,use the land and the improvements which it erects only in-accordance with the limitations set forth in . the applicable redevelopment or renewal plan. . ‘As the foregoing Mdicates, what petitioners ‘claim is a subsidy is rather a bargained-for equivalent which ‘either arm's length negotiations or a public auction insures is not # subsidy. > » ; . . i6 os ie) pee es <_ Petitioners contend that, regardless of the propriety of . the Title I schethe in general, ‘on the facts of this case '. @ Fordham has received. a subsid y by its participation in the Lincoln Square Project (petition, pp. #11). ° Whilé the: petition is unclear as to precisely-how Ford. ham has received that subsidy, the petition hints that the subsidy stems (i) from the sponsorship contract between the City and Fordham (petition, p. 11); (ii) from the con. demnation of the Collegiate Site (petition, p. 1)); and (iii! from, the restrictions im upon the redevelopment of the Collegiate Site (petit pp.5,6,1011).-s . @ (i) Clearly, Fordham has not on the facts of this case received a subsidy through the sponsorship contract. The ’ assurance therein that the City would sell the Tollegiate Site to Fordham if it were the highest bidder was in no real sense a greater assurance than that granted to any pre- spective bidder at the public auction of that Site, On the other hand, the contract imposed the steep cbligation solely upon Fordhaw to bid at least $M 610 for the Collegiate Site. (ii) Equally pany Fordham has not received a subsidy by condemnation of the Collegiate Site. The conden. nation was an independent act of the City and was legally unrelated to é. erection of the improvements contemplated by the Project. Certainly, the condemnation was not for ‘Fordham. If anything, the condemnation was for the subsequent public auction and that auction «as not bed for Fordham's benefit. ‘ . (iii) Finally, Fordham has not reevived a subsidy’ throygh the restrictions on the re-use of the Collegiate. Site. Those restrictions “require thal that Site be aeed exclusively for educational parposes for a period of forts years, Beenanse of those restrictions, only educational 4 17 institutions could bid for that Site. - However, that Jimita- tion upon the potential bidders for that Site hardly **sub- sidizes"” any one educational institution. . _ CONCLUSION . a For the foregoing reasons, the petition for a writ of certiorari should be denied. Respectfully submitted, Samus. L Roser vax, Attorney for Respondent © Webb @ Auapp Lincoln Square Corporation. \ Max Faeuwn, Jeaome L. Stxoran, Lawaesce B. Dorreswreera, or Cownse!. ~_ April 9, 1959 % --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA04386419_0796%3A5. Public record. Not legal advice.