Opposition Brief — City of Hawthorne v. Wright
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No. 88-1919
SUPREME COURT ~—
OF THE UNITED STATES
October Term, 1988
CITY OF HAWTHORNE, et al.,
Petitioners,
VS
EARL WRIGHT, et al.,
Respondents
BRIEF IN RESPONSE TO
PETITION FOR CERTIORARI
JOHN K. VAN DE KAMP
Attorney General of the
State of California
R. H. CONNETT
Assistant Attorney General
SYLVIA CANO HALE
Deputy Attorney General
3580 Wilshire Boulevard, Suite 600
Los Angeles, California 90010
(213) 736-2161
Attorneys for Intervenor-Respondent
CALIFORNIA DEPARTMENT OF
HOUSING AND COMMUNITY
DEVELOPMENT
i
QUESTIONS PRESENTED*
Whether this Court should grant
certiorari to review the District Court's
decision granting leave to file a
supplemental complaint under Rule 15(d)
of the Federal Rules of Civil Procedure;
2. Whether this Court should grant
certiorari to review the District Court's
decision sua sponte reopening the case
for the taking of further evidence.
*Petitioners’' brief presents four
questions for review, two of which
pertain solely to plaintiffs-respondents.
HCD's’ brief, as intervenor, focuses
on the two questions pertinent to its
interests.
ii
LIST OF PARTIES
The parties to the proceedings
below were as follows:
Plaintiffs on Supplemental Complaint:
The plaintiffs were Earl Wright,
Rose Kimball and Pablo Zapeta.
Plaintiffs in Intervention:
These parties were the California
Department of Housing and Community
Development, California Department of
Transportation, and Goldrich & Kest, Inc.
Defendants on Supplemental Complaint:
The City of Hawthorne City Council,
Betty J. Ainworth, Steve Andersen, Chuck
Bookhammer, Guy J. Hocker, and David M.
York were defendants.
retii. + eed
- 7
ee
a
eS
— Biase
Ss) ale eee
iii
The original plaintiffs in the
underlying action were Ralph W. Keith,
Esther May Keith, Harold E. Grady, Edith
W. Grady, James B. Gillespie, Helen M.
Gillespie, National Association for the
Advancement of Colored People, The Sierra
Club, Environment Defense Fund, Inc. and
Freeway Fighters. The original complaint
was amended in April, 1972, to add the
City of Hawthorne as a plaintiff.
Named as defendants in the original
and amended complaint were the Secretary
of the U.S. Department of Transportation,
the Region 7 Administrator of the Federal
Highway Administration, the Federal
Highway Administration, the U.S.
Department -of Transportation, the
Division Engineer of the Federal Highway
.
-
‘- —
,
|
l
:
iv
Administration and U.S. Department of
Transportation, the California Highway
Commission, the California Department of
Public Works, the Director of the
California Department of Public Works,
and the California State Highway
Engineer.
-V=—
TABLE OF CONTENTS
QUESTIONS PRESENTED i
LIST OF PARTIES ii,iii,iv
TABLE OF CONTENTS v,iv
TABLE OF AUTHORITIES vii,viii,ix
OPINIONS BELOW 2
I. STATEMENT OF THE CASE 3
rz. THE CITY'S PETITION FOR
CERTIORARI SHOULD BE DENIED 12
A. This Case Is Not
Appropriate For Review
By Writ Of Certiorari 12
B. The Opinion Below Correctly
Interprets And Applies
The Standard For Granting
Leave To File A
Supplemental Complaint
To The Specific Facts Of
This Case 15
C. The Opinion Below Correctly
Interprets and Applies The
Law Governing The Reopening
Of A Case To The Specific
Pacts Of This Action
Iii. CONCLUSION
23
29
-Vie-
APPENDIX A - Opinion of the United
States District Court in Ralph W.
Keith, et al. v. City of Hawthorne,
Civ. No. 72-355-HP,
September 3, 1985 Al
APPENDIX B - Opinion of the United States
Court of Appeals for the Ninth
Circuit in Ralph W. Keith, et al.
v. John A. Volpe, et al.; Earl
Wright, et al. Vv. City of
Hawthorne, No. 85-6336,
September 19, 1988 Bl
APPENDIX C = Order of the United States
Court for the Ninth Circuit in
Ralph W. Keith, et al., v. City of
Hawthorne, No. 85-6336
January 24, 1989 Cl
-vii-
TABLE OF AUTHORITIES
Cases Page
Keith v. Volpe (C.D. Cal. 1972)
352 F.Supp. 1324
aff‘d. en banc sub nom; 4,7,19
Keith v. California Housing Commission
(9th Cir. 1974)
506 F.2d 696,
Cert. denied, 420
U.S. 908 95 S.Ct. 1826,
95 &.Ct. 1626,
42 L.Ed.2d 837 (1975) 4
United States v. Johnston (1925)
268 U.S. 220, 227,
45 S.Ct. 496
69 L.Ed. 925 14,29
Griffin v. County School Board (1964)
377 U.S. 218,
84 S.Ct.1266
12 L.Ed.2d 256 17,18,19
School for the Blind v. Honig
(9th Cir. 1984)
736 F.2d 538, 548 26
Ellis v. Brotherhood of
Railway, Airline, Steamship
Clerks (9th Cir. 1982)
685 F.2d 1065, 1971 26
-viii-
Cases Page
Calage v. University of
Tennessee (6th Cir. 1976)
544 F.2d 297, 301) 26,27
Arthur Murray, Inc. v. Oliver
(8th Cir. 1966)
364 F.2d 28 27,28
Statutes
National Environmental
Policy Act of 1969
42 U.S.C. §§ 4321-4347 4
California Environmental Quality
Act of i370 4
California Public Resources
Code §§ 21000-21151 4
Uniform Relocation Assistance
and Real Property Act of 1970
42 U.S.C. §§ 4601-4655 a
Fair Housing Act 5
Civil Rights Act of 1968,
Title VII,
42 U.S.C. §§ 3601-3631 10,11
California Government Code :
§ 65008 11
-i x=
“ Constitutions Page
Fourteenth Amendment of
the United States Constitution 4,10
Federal Rules
Federal Rules of Civil Procedure
65(a) (2) 10
Federal Rules of
Civil Procedure 15(d) 19
No. 88-1919
In the
SUPREME COURT
OF THE UNITED STATES
OCTOBER TERM, 1988
CITY OF HAWTHORNE, et al.,
Petitioners,
vs.
EARL WRIGHT, et al.,
Respondents.
I ee eS ee SS SS SSS 2 _ 2 5 95 5 5-5 5 5 —
BRIEF IN RESPONSE TO
PETITION FOR CERTIORARI
The California Department of Housing
and Community Development ("HCD"),
intervenor in the case below,
respectfully submits the following brief
in response to the petition for
certiorari (“petition”) filed by the City
of Hawthorne (“City”).
o De
OPINIONS BELOW
The opinion of the Court of Appeals
for the Ninth Circuit is reported at 858
F.2d 467, and is reprinted in the
appendix hereto, p.Bl, infra.
The memorandum decision of the
United States District Court for the
Central District of California
(Pregerson, C.J., presiding by special
designation) is reported at 618 F.Supp.
1132, and is reprinted in the appendix
hereto, p.Al, infra.
-
STATEMENT OF THE CASE
The underlying complaint in this
case was filed in 1972 by a number of
plaintiffs against certain state and
federal agencies and officials, including
HCD, challenging the construction of the
then proposed Century Freeway in Los
Angeles. In April 1972, the Complaint was
amended to add the City of Hawthorne as
plaintiff. The complaint alleged that
defendants had failed to comply with,
inter alia, federal and state
environmental protection statutes, with
federal statutes which guarantee
replacement housing or relocation
assistance payments to persons displaced
by highway construction and with
provisions which prohibit discrimination
ies
against minority and poor persons seeking
replacement housing .+/ In July 1972, the
District Court issued a preliminary
injunction halting all work on the
Century Freeway. (Keith v. Volpe 352
F.Supp. 1324, (C.D. Cal. 1972) aff'd. en
banc sub nom; Keith v. California Housing
Commission, 506 F.2d 696 (9th Cir. 1974),
Cert. denied, 420 U.S. 908, 95 S.Ct. 826,
42 L.Ed.2d 837 (1975).) On September 13,
1979, the City of Hawthorne realigned
itself with a number of intervenor cities
1. Specifically, the National
Environmental Policy Act of 1969, 42
U.S.C. §§4321-4347; the California En-
vironmental Quality Act of 1970,
California Public Resources Code sec-
tions 21000-21151; the Uniform Reloca-
tion Assistance and Real Property Act
of 1970, 42 U.S.C. §§4601-4655; the
Fourteenth Amendment of the United
States Constitution.
afin
who sought to dissolve the injunction and
permit construction to continue.
(Excerpt of Record (“E.R.") at 749-50.)
Following lengthy negotiations, the
parties entered into a Consent Decree
which was approved by the District Court
on September 22, 1981.
One of the express goals of the
Consent Decree is to provide replacement
housing and relocation assistance
payments to those persons who will be
displaced by construction of the freeway.
(E.R. at 3.) A key part of the Consent
Decree is the Housing Plan (Exh. B to the
Decree) which requires state and federal
defendants, including HCD, to provide
3,700 units of housing to assist in
housing approximately 21,000 persons
~
displaced by the freeway. Under the
terms of the Housing Plan, displaced
residents from the corridor have first
opportunity to rent or purchase the
replacement housing. (E.R. at 46.)
Those units not rented or purchased by
displaced rege‘idents are then =wmade
available to low and moderate income
households according to priorities set
forth in the Housing Plan. (E.R. at 48.)
The Consent Decree designates HCD
as the agency responsible for
implementing the Housing Plan. (E.R. at
31.) A Housing Advisory Committee, which
includes representatives of each of the
cities affected by the freeway, assists
HCD in preparing the Housing Plan. HCD
is to provide financing for construction
~
of the replacement housing with funds
from federal and state defendants. The
Consent Decree imposes on the City an
obligation to assist HCD in providing
replacement housing. (E.R. at 134.)
(Appendix, Al3, infra.) (Keith v. Volpe
(1985) 618 F.Supp. 1133, 1138 fn.7.)
Although the construction of the freeway
will reduce Hawthorne's housing stock by
1,104 household units, the Housing Plan
allocates only 275 units of replacement
housing to be built in Hawthorne.
(Appendix, Al5, infra.) Hawthorne's
representative on the Housing Advisory
Committee participated in setting this
figure. (Appendix, Al5, fn. 7, infra).
Thus, under the Consent Decree only one-
fourth of Hawthorne displacees will be
=
provided an opportunity to relocate to
replacement housing in Hawthorne. Prior
to the filing of the supplemental
complaints, only 128 units of replacement
housing were even in the planning stages
of development in Hawthorne out of a
total of 275 units allocated, and none
had been completed. (Appendix, A115,
infra.)
This petition concerns a 96-unit
apartment building, known as Kornblum,
which HCD approved and funded as
replacement rental housing under the
Consent Decree. After the City
disapproved applications for necessary
permits for two housing developments,
Cerise and Kornblum, which totalled
approximately 128 units of replacement
aie
housing, several residents to be
displaced by the freeway filed one of the
supplemental complaints at issue herein.
Thereafter, HCD was granted leave to
intervene and filed its own supplemental
complaint, also at issue herein.2! The
California Department of Transportation
and the Kornblum developer were also
grarted leave to intervene. Because the
Cerise development has been abandoned,
the present petition concerns only the
Kornblum development.
2. The City of Hawthorne and
HCD stipulated that if plaintiffs were
granted leave to file a supplemental
complaint, said leave should also be
granted to HCD. (E.R. 533-534). The
City's attack on plaintiffs' supplemen-
tal complaint places at issue HCD's own
supplemental complaint.
ni@e
HCD‘s supplemental complaint
against the City alleges violations of
the Supremacy Clause and California
Government Code section 65008, which
prohibits discrimination in housing on
the basis of race, color or income
status .2/
Pursuant to Federal Rules of Civil
Procedure 65(a)(2), the parties agreed
to advance the trial and to consolidate
it with the hearing on the application
for a preliminary injunction made by both
the plaintiffs and HCD, plaintiff in
3s The supplemental complaint
filed by plaintiffs asserted additional
grounds: Violation of the Fair Housing
Act, Title VII of the Civil Rights Act
of 1968, 42 U.S.C. §§3601-3631 and the
Fourteenth Amendment of the United
States Constitution.
Be
ante
intervention. (Appendix, A28, infra.).
Following trial, the District Court ruled
that Hawthorne’s actions discriminated
against minority and poor displacees in
violation of the Fair Housing Act, Title
VII of the Civil Rights Act of 1968, 42
U.S.C. §§ 3601-3631, and that Hawthorne
had failed to show non-discriminatory
reasons for its actions. The District
Court also ruled that the City had
discriminated on the basis of race and
income in violation of California
Government Code section 65008. On appeal
to the Ninth Circuit a panel affirmed the
District Court decision, including its
ruling (by a 2-1 vote) that the District
Court properly granted plaintiffs leave
to file a supplemental Complaint.
-12—
II. THE CITY’S PETITION FOR
CERTIORARI SHOULD BE DENIED
A. This Case Is Not Appropriate
For Review By Writ Of
Certiorari.
In an attempt to conjure up legal
issues which might be worthy of review by
certiorari, the City erroneously argues
that the “issue of the limits of judicial
power permeates the entire case now
before this Court.” (See Petition at 8.)
Thus the petition claims to present an
issue of exceptional importance involving
judicial bias and forum shopping.
The City’s protestations at this
point are untimely as it failed to raise
this issue before the District Court or
preserve it for appeal. Although the
City opposed granting plaintiffs leave to
ih
file a supplemental complaint, the City
did not seek review of this decision by
certification or writ of mandamus. Nor
did the City request the District Judge
to disqualify himself. (Appendix, B22,
infra.) The City raised the issue for
the first time on appeal and the Ninth
Circuit panel rejected the claims,
concluding:
“The only prejudice alleged by
defendants is an after-the-fact
conclusion that the District judge was
biased against’ them. They do not,
however, contend that the District
judge‘s alleged bias amounted to judicial
misconduct requiring reversal. Nor do
they point to any conduct of the Court in
earlier stages of the litigation
suggesting bias with respect to
Hawthorne.
“We should not look to the speculation
of those who subsequently did not prevail
about what might have occurred before a
different judge.” (Appendix, B 22-23,
infra. )
—7
Moreover, as discussed below, the lower
Court decision is correct, does not
conflict, as far as Intervenor can
discern, with any decision of this Court
or another federal appellate court, and
is so fact specific as to possess no
precedential value. This case will
involve no new rule of law and,
therefore, will provide no additional
guidance to the lower courts other than
to demonstrate an application of the
appropriate case law to the set of facts
in this case. This Court has stated that
“we do not grant certiorari to review
evidence and discuss specific facts.”
(United States v. Johnston (1925) 268
U.S. 220, 227, 45 S.Ct. 496, 69
L.Ed.925.) Yet, that is what would occur
ii a
7
oi Sa
if this Court grants certiorari in this
case.
B. The Opinion Below Correctly
Interprets And Applies The
Standard For Granting Leave To File
A Supplemental Complaint To The
Specific Facts Of This Case.
The City argues that the
supplemental complaint by plaintiffs was
improper, reasoning that there is an
insufficient nexus between the original
complaint and plaintiffs’ supplemental
complaint. However, the City ignores one
fundamental fact: both the original
complaint and the supplemental complaints
were filed to redress continuing injuries
to the rights of persons displaced by the
Century Freeway. As the majority opinion
of the Ninth Circuit astutely points out:
atin
"The concern in the original
action, the consent decree, and the
supplemental complaint is the same - the
availability of replacement housing for
persons displaced by the Century Freeway.
The Fourth Circuit in Rowe also focused
on the confluence of the actual
objectives between the parties’ original
pleadings and the proposed supplemental
filings. .. .” (Appendix, B20, infra.)
HCD filed its supplemental
complaint against the City because the
City’s denial of permits to Kornblum and
Cerise impaired HCD’s obligation to
construct the replacement housing
required under the Consent Decree.
Evidence in the record demonstrated that
delay in the construction of these units
would jeopardize HCD’s construction
schedule, the attainment of the housing
goals in the Consent Decree and cause
disruption in the displacement schedule.
(Supp.E.R. at 152.) Since the City’s
foe
Fo
actions impaired HCD’'s ability to provide
replacement housing intended on a
priority basis for displaced residents,
the injury sought to be vindicated by its
supplemental complaint is a continuing
injury to the rights of displaced persons
to replacement housing. In Griffin v.
County School Board (1964) 377 U.S. 218,
84 S.Ct. 1226, 12 L.Ed.2d 256, this Court
upheld the filing of a supplemental
complaint in a similar situation. In
Griffin, the supplemental complaint was
filed to redress a continuing injury to
the rights of students to attend
desegregated schools. The supplemental
complaint was permitted notwithstanding
the fact that it involved different
actions by different parties. The
yo
Supreme Court focused on the continuing
nature of the injury sought to be
vindicated. As in Griffin, the majority
decision of the Ninth Circuit has
correctly focused on the fact that
plaintiffs’ supplemental complaint in
this action seeks to redress a continuing
injury to the rights of displaced persons
to obtain replacement housing. The City
argues that the legal and factuai issues
raised in the original action are
different from the legal and factual
issues raised in the supplemental
complaint. Thus, according to the City,
plaintiffs’ supplemental complaint is
improper. Contrary to this statement,
the fact is that both the original
complaint and the plaintiffs’
=<
supplemental complaint assert a violation
of the Fourteenth Amendment. (Keith v.
Volpe [C.D. Cal. 1985] 618 F.Supp. 1132,
1143). Thus, some of the claims in the
Original action are similar to those in
plaintiffs’ supplemental complaint. The
fact that some of the legal theories in
the supplemental complaint are different
from those in the original complaint does
not render the supplemental complaint
improper. The Supreme Court has stated
that new claims, new parties and events
occurring after the original action are
all properly permitted under Federal
Rules of Civil Procedure section 15(d).
(Griffin v. County School Board, supra,
at 226-227.) The sole proviso is that
the supplemental pleading set forth
= 20~
transactions, occurrences or evets which
have happened since the date of the
pleading sought to be supplemented. The
supplemental complaints by plaintiffs and
HCD herein clearly meet this standard, as
they set forth actions by Hawthorne which
cause a continued injury to the rights of
displaced persons to replacement housing.
HCD believes that because the
Consent Decree in the original action
directed HCD to provide replacement
housing for displaced persons and because
the City’s denial of permits to Kornblum
jeopardized HCD’s ability to meet its
obligation under the Consent Decree, and
impaired the rights of displaced persons
to obtain replacement housing, the
necessary nexus exists between the
ee
Original action and HCD’s supplemental
complaint.
Finally, Rule 15(d) of the Federal
Rules of Civil Procedure is a tool to
serve judicial economy and convenience.
In the instant case, the court system has
an interest in having HCD’s supplemental
complaint heard by the same Court which
retained jurisdiction over implementation
of the Consent Decree. It cannot be
disputed that HCD contirues to be
obligated under the Consent Decree to
build the remaining replacement housing.
HCD filed its supplemental complaint
before Judge Pregerson to avoid the
possibility of inconsistent obligations.
Assuming the City had prevailed before
Judge Pregerson, the 126 units would not
=22-
have been built and the Court would then
have reevaluated HCD’s progress on the
housing goals which are part of the
Consent Decree in light of this decision.
If necessary, the Consent Decree would
have been amended.
However, if another District Court
had heard this dispute and ruled in
Hawthorne's favor, HCD would still have
had an obligation under the Housing Plan
to construct these 126 units elsewhere in
Hawthorne. Alternatively, HCD could have
sought an amendment to the housing goals
and the Housing Plan from _ Judge
Pregerson. In this event, HCD would have
risked the possibility that such an
amendment could have been denied, leaving
HCD with the obligation to comply with
Bache Nat tl
ees
en.
Ses Ser
nttea
conflicting requirements. Clearly the
filing of the supplemental complaint
served judicial economy and convenience
under these circumstances.
Cc. The Opinion Below Correctly
Interprets And Applies The Law
Governing The Reopening Of A Case
To The Specific Facts Of This
Action.
On April 17, 1985, a bench trial
was held and the court received into
evidence plaintiffs’ 1980 U.S. Census
data and certain written evidence and
legal briefs. The matter was submitted
to the court. On May 10, 1985, the court
ordered the parties to further brief the
question of plaintiffs’ and intervenors’
standing. Thereafter, on May 24, 1985,
the court reopened the proceedings and
requested the parties to submit further
a%é=
information on the racial and economic
composition of the Hawthorne census
tracts affected by the freeway. The City
argues that the District Court's
reopening of the case to receive further
evidence suggests bias on the part of the
judge and is improper.
The facts adduced at the trial do
not support petitioners’ characterization
of the issue. The facts surrounding the
District Court’s sua sponte decision to
reopen the case are accurately summarized
in the Ninth Circuit’s analysis as
follows:
"The record reflects that the judge
requested the survey because he felt he
needed more recent objective data in
order to make an informed decision. The
court expressed concern that because the
racial composition of the area varied
considerably over the years and the
submitted evidence was out of date,
current evidence was necessary’ to
=25-
determine whether there was any
discriminatory evidence.”
(Appendix, B29, infra.) (See Supp. E.R.
at 155-164.)
The data submitted in response to
the court’s order consisted of the
results of plaintiffs’'door-to-door and
telephone survey of Hawthorne displacees
residing in the Hawthorne census tracts.
HCD introduced a summary of relocation
files maintained by the California
Department of Transportation which was
Supplemented through phone calls and
personal interviews by HCD staff members
to update the information. The City
prepared its own summary of the
relocation files and submitted it to the
court.
The court’s sua sponte reopening of
= 26.
the case is consistent with’ the
applicable law in this area. (See, e.g.
School for the Blind v. Honig (9th Cir.
1984) 736 F.2d 538, 548; Ellis v.
Brotherhood of Railway, Airline Steamship
Clerks (9th Cir. 1982) 685 F.2d 1065,
1071; Calage v. University of Tennessee
(6th Cir. 1976) 544 F.2d 297, 301.) The
court below correctly applied Calage to
the facts of this case. In Calage, the
District judge reopened the case
sua sponte after it was submitted but
prior to the entry of judgment. The
judge requested further evidence from the
University to explain certain disparities
between the wages of men and women. The
University submitted the information
requested and, thereafter, prevailed in
oSte
the action. In Calage, appellants argued
before the Eighth Circuit that’ the
court’s decision to reopen the case
indicated some predisposition in favor of
the respondent University. The ‘Eighth
Circuit rejected this argument. In
response to a similar argument by the
City in the present case, the Ninth
Circuit concluded:
“This is precisely the argument
made by appellants in the case before us.
The court in Calage rejected this
argument, observing that there was no
evidence that the judge was biased, and
that ‘[{t)he information sought here was
readily available, and that the judge
conceived that the justice of the case
required that he have it.’ Id. at 301-02.
For similar reasons, we find that the
District court did not abuse _ its
discretion in reopening the proceedings.”
(Appendix B31, infra.)
The City relies upon Arthur Murray,
Inc. v. Oliver (8th Cir. 1966) 364 F.2d
~~ =
28. However, the Ninth Circuit
distinguished the Murray case on two
grounds. First, in Murray there was an
eighteen-month inexplicable delay between
the time the case was submitted and the
case was reopened by the judge. Second,
the judge stated on the record that the
evidence submitted was sufficient to send
the case to the trier of fact.
(Appendix, B30 infra.)
In the present case, the Ninth
Circuit found the reopening proper
because “the District Court determined
both that the additional evidence was
necessary to achieve a just disposition
and that it was reasonably available, and
there was no delay.” (Appendix, Id.)
hi Mite AS OT te Cans
-29-
III
CONCLUSION
Since the decision below correctly
interprets and applies the law to the
facts of this case, no special or
important reason exists for granting
review in this case. The lower court
decision is correct, does not conflict,
as far as HCD can discern with any
decision of this Court or of a Circuit,
and is so fact-specific as to have no
precedential value. This ‘Court has
stated that “we do not grant certiorari
to review evidence and discuss specific
facts.” (United States oe Johnston,
supra, 268 U.S. 220, 227.) Yet that is
what would occur if this court grants
-30-
certiorari in this case. For the
foregoing reasons, the California
Department of Housing and Community
Development requests the petition for
writ of certiorari be denied.
June 20, 1989
Respectfully Submitted,
JOHN K. VAN DE KAMP, Attorney General
of the State of California
R. H. CONNETT,
Assistant Attorney General
SYLVIA CANO HALE,
Deputy Attorney General
a
Fs VIA CANO HALE
Deputy Attorney General
Attorneys for
Intervenor-Respondent
CALIFORNIA DEPARTMENT OF
HOUSING AND COMMUNITY
DEVELOPMENT
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APPENDIX A
Ralph W. KEITH and Esther May Keith, husband and_
wife; Harold E. Grady, and Edith W. Grady,
husband and wife; James B. Gillispie and Helen M.
Gillispie, husband and wife, on behalf of themselves
and all others similarly situated; National Associa-
tion for the Advancement of Colored People, a non-
profit corporation; the Sierra Club, a nonprofit
corporation; Environmental Defense Fund, Inc., a
nonprofit corporation; Freeway Fighters, an unin-
corporated association; City of Hawthorne, a
municipal corporation, Plaintiffs,
v.
John A. VOLPE, individually and as Secretary of
Transportation; Sheridan A. Farin, individually and
as Administrator for Region 7, Federal Highway
Administration, Department of Transportation;
Donald E. Trull, individually and as Division
Engineer, Federal Highway Administration, Depart-
ment of Transportation; California Highway Comm-
ission; California Department of Public Works;
James A. Moe, individually and as Director of
California Department of Public Works; Robert
Datel, individually and as State Highway Engineer,
California Division of Highways, California Depart-
ment of Public Works, Defendants.
Earl WRIGHT, Rose Kimball Hiilman, Pablo Zapeta,
and Minnie Hadley, Additional Plaintiffs on
Supplemental Complaint,
Vv.
CITY OF HAWTHORNE, a municipal corporation; City
Council of the City of Hawthorne; Betty J.
Ainsworth, Steve Andersen, Chuck Bookhammery,
Guy J. Hocker, and Davis M. York, as members of
the City Council of the City of Hawthorne,
Defendants on Supplemental Complaint.
California Department of Housing and Community
Development; California Department of Transporta-
tion, Intervenors on Supplemental Complaint.
Goldrich & Kest, Inc., a California Corporation,
Intervenors on Supplemental Complaint.
Civ. No. 72-355-HP.
United States District Court,
C.D. California.
Sept. 3, 1985.
Persons living in path of proposed freeway and others
filed environmental and civil rights lawsuit against state
and federal governmental officials. Parties entered into a
consent decree requiring that state and federal
defendants provide freeway displacees with 3,700 units of
replenishment housing. In response to city’s actions
concerning two housing developments containing such
replenishment housing, plaintiffs submitted motion for
leave to file supplemental complaint to add allegations
that city illegally refused to permit construction of two
replenishment rental developments within its borders.
The District Court, Pregerson, Circuit Judge, sitting by
designation, held that: (1) city imposition of 35%
li
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limitation on number of units in development that could
be rented to low income tenants and its denial of lot split,
zone change and site development applications for
another development violated Title VIII, and (2) city’s
actions violated California statute prohibiting discrimina-
tion against a residential development because of race of
intended occupants, because development is intended
occupants, because development is intended for occup-
ancy by persons of low and moderate income, and
because development is state-assisted.
So ordered.
(§§§ = West Key Numbering System)
1. Federal Courts §§§ 15
Because federal claims in Title VIII action had
substance sufficient to confer subject-matter jurisdiction
on district court, and state and federal claims derived
from common nucleus of operative fact, court also had
pendent jurisdiction of California Government Code and
California Constitution causes of action. Civil Rights Act
of 1968, §§ 801-901, 42 U.S.C.A. §§ 3601-3531.
2. Civil Rights §§§ 13.6
To establish standing, a Title VIII plaintiff must
merely show the Article III minima, i.e., that he suffered
a distinct and palpabie injury to himself that is likely to
be redressed if the relief is granted. Civil Rights Act of
1968, §§801-901, 42 U.S.C.A. §§3601-3631; U.S.C.A.
Const. Art. 3,§1 et seq.
—
a *
3. Civil Rights §§§ 13.6
Low income minority plaintiffs due to be displaced by
freeway had standing to bring claim under Title VIII
challenging city’s imposition of 35% limitation on
number of units in replacement housing development
that could be rented to low income tenants and city’s
denial of lot split, zone change, and site development
application for another replacement housing project,
considering that plaintiffs were residents of city, and that
if relocation housing was not built before they were
displaced, they would have to move outside of city to find
affordable housing. Civil Rights Act of 1968, §§ 801-901,
42 U.S.C.A. §§ 3601-3631.
4. Civil Rights §§§70
Low income minority plaintiffs due to be displaced by
freeway had standing to bring claim, under subsections of
California Government Code [West’s Ann.Cal.Gov.
Code §65008(b,c)], which prohibit discrimination against
a residential development on basis of race or low income
level of intended tenants, challenging city’s imposition of
35% limitation on number of units in replacement
housing development that could be rented to low income
tenants and city’s denial of slot split, zone change, and
site development applications for another replacement
housing development; moreover, developer who interven-
ed also had standing to bring claim under same statute.
5. Civil Rights §§§70
Low income minority plaintiffs due to be relocated by
freeway had standing to bring claim, under subsection of
California Government Code [West’s Ann.Cal.Gov.
Code §65008(d)], which prohibits city from imposing
—* =
requirements on a residential development financially
assisted by state or federal governments different from
those imposed on nonassisted developments, challenging
city’s imposition of 35% limitation on number of units in
replacement housing development that could be rented to
low income tenants, considering that they showed a
“distinct and palpable injury” as a result of city’s 35%
requirement in that state refused to finance development
such a requirement existed and developer would not build
development without state assistance; moreover, state
intervenors had standing because they were the agencies
providing residential development financial assistance
referred to in statute.
6. Civil Rights §§§ 13.13(1)
Once a Title VIII plaintiff has established a prima facie
case by demonstrating racially discriminatory effect,
burden shifts to defendant to demonstrate that nondiscr-
iminatory reasons justify its conduct; if defendant offers
no valid nondiscriminatory reasons, court must determ-
ine whether they are substantial enough to justify the
racially discriminatory effect. Civil Rights Act of 1968,
§§ 801-901, 42 U.S.C.A. §§ 3601-3631.
7. Civil Rights §§§ 13.13(3)
Low income minority plaintiffs due to be displaced by
freeway established prima facie case that city violated
Title VIII by imposing 35% limitation on number of units
in replacement housing development that could be rented
to low income tenants and by denying lot split, zone -
change, and site development applications for another
replacement housing project, considering evidence of
discriminatory effect in that failure to build projects
would force low income minority displacees to move
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Beal Se
outside city, that city failed to show any legitimate
interest in taking challenged actions, and that plaintiffs
did not seek to compel city affirmatively to provide
housing for members of minority groups, but merely to
enjoin city from interfering with private property
developers who wished to provide such housing.
8. Civil Rights §§§ 13.13(3)
City’s justifications for imposing 35% limitation on
number of units of housing development that might be
rented to low income tenants and its denial of lot split,
zone change, and site development applications for
another housing development, including claim that
actions furthered its policy of dispersing low income
residents throughout city, and that it acted to prevent
overcrowding of schools, increase in traffic, increase in
housing density, and loss of taxes, failed to rebut prima
facie case established by low income minority plaintiffs
that city’s actions violated Title VIII; moreover, city did
not establish that developer’s ability to build housing on
one or more of 52 alternate parcels eliminated any
adverse effect on low income racial minorities caused by
city’s actions. Civil Rights Act of 1968, §§801-901, 42
U.S.C.A. §§ 3601-3631.
9. Federal Courts §§§270
Eleventh Amendment’s grant of sovereign immunity to
the states did not bar district court from determining
whether city officials complied with California law
prohibiting discrimination against residential develop-
ments because of race or income of intended occupants,
where relief against city was not equivalent of monetary
judgment against the state. U.S.C.A. Const.Amend. 11;
West’s Ann.Cal.Gov. Code § 65008.
—\
10, Federal Courts §§§390
Where state’s highest court has not yet decided issue,
federal court exercising pendent jurisdiction over the
state law claim must use its own best judgment in
predicting how state’s highest court would decide case.
11. Civil Rights §§§72
A showing of discriminatory impact is sufficient to
establish a violation under section of California
Government Code [West’s Ann.Cal.Code §65008(b)]
prohibiting discrimination against a residential develop-
ment because of race of intended occupants.
12. Civil Rights §§§ 11.5
City imposition of 35% limitation on number of units
in housing development that could be rented to low
income minority tenants due to be displaced by freeway
and its denial of lot split, zone change, and site
development applications for a similar development
intended as replacement housing violated section of
| California Government Code [West’s Ann.Cal.Gov.
| Code §65008(b)] prohibiting discrimination against a
| residential development because of race of intended
occupants.
13. Zoning and Planning §§§ 14
City’s imposition of 35% limitation on number of units
in housing development which could be rented to low
income tenants facially conflicted with subsection of
California Government Code [West’s Ann.Cal.Code
} §65008(c)] prohibiting discrimination against a residenti-
Val development because development is intended for
|
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— \
occupancy by persons and families of low and moderate
income and statute preempted city’s power to impose the
limitation.
14, Civil Rights §§§72
Proof of discriminatory effect is sufficient to establish
a violation of section of California Government Code
[West’s Ann.Cal.Gov. Code §65008(c)] prohibiting
discrimination against a residential development because
development is intended for occupancy by persons and
families of low and moderate income.
15. Civil Rights §§§ 11.5
City’s denial of applications for rezoning, lot split, and
site development for housing project intended to serve as
replacement housing for low income households due to be
displaced by freeway violated section of the California
Gov.Code [West’s Ann.Cal.Gov.Code §65008(c)] proh-
iting discrimination against » residential development
because development is intended for occupancy by
persons and families of low and moderate income,
considering that city’s frustration of development had a
greater adverse effect on low income than on middle and
high income displacees because low income displacees
had least amount of affordable housing available to them.
16. Civil Rights §§§ 11.5
City’s requirement that state-assisted developer of
residential housing project agree to record a covenant
limiting to 35% number of units rented to low income
households violated section of California Government
Code [West’s Ann.Cal.Gov. Code §65008(d)] prohibiting
a city from imposing different requirements on a state-
assisted residential development from those imposed on a
, nonassisted development, considering that city required
no developer except state-assisted developer to record
such a covenant.
Appendix
17. Evidence §§§ 177
Summary report of survey seeking information on
racial and economic background of persons displaced by
freeway was admissible in action challenging city’s
decision regarding replacement housing, under Federal
Evidence Rule 1006 providing that contents of volumin-
ous writing which cannot conveniently be examined in
_ court may be presented in form of summary, considering
that court could not conveniently examine 253 completed
survey questionnaires and compute percentage of
different responses to 23 questions. Fed. Rules Evid.Rule
1006, 28 U.S.C.A.
18. Evidence §§§318(4)
Summary report of survey seeking information on
racial and economic background of persons due to be
displaced by freeway was admissible in action challenging
city’s decisions regarding replacement housing projects,
under “catch-all” exception to hearsay rule, considering
that survey results were evidence of facts material to
plaintiffs’ allegations that city’s actions had an adverse
racial and economic impact on displacees, that survey
was more probative on issue of adverse impact than any
other evidence which plaintiffs could procure through
reasonable efforts, and that general purposes of rules of
evidence and interest of justice would best be served by
admission of survey into evidence; moreover, plaintiffs
—A10—
established that survey had equivalent circumstantial
guarantees of trustworthiness. Fed. Rules Evid.Rule
803(24), 28 U.S.C.A.
19. Evidence §§§ 177
Summaries of information compiled by California
Department of Transportation on racial and economic
background of persons due to be displaced by freeway
were admissible in action challenging actions of city with
regard to replacement housing, under Federal Evidence
Rule 1006 providing that contents of voluminous
writings which cannot be conveniently examined in court
may be presented in form of a summary, considering that
it would have been inconvenient for court to examine all
relevant files of Department to glean out pertinent
information. Fed.Rules Evid.Rule 1006, 28 U.S.C.A.
20. Evidence §§§333(1)
Summaries of information compiled by California
Department of Transportation concerning racial and
economic background of persons due to be displaced by
freeway were admissible in action challenging city’s
actions concerning replacement housing, under public
records exception to hearsay rule, notwithstanding
contention that additional information put into summar-
ies was inadmissible because it was not obtained “from an
investigation made pursuant to authority granted by
law,” but was gathered as a result of court’s order,
considering that additional information was the same
type of information that Department routinely gathered
in regular course of business, pursuant to authority
granted by law. Fed.Rules Evid.Rule 803(8)(C), 28
U.S.C.A.
—All—
Center for Law in the Public Interest, Bill Lann Lee,
Elsa Leyva, Los Angeles, Cal., for the plaintiffs.
| Department of Transp., Bruce Behrens, Joel G.
Philipp, Sacramento, Cal., for the State of California.
; Burke, Williams & Sorenson, Richard R. Terzian,
| Cristina L. Sierra, Los Angeles, Calif. for the City of
Hawthorne.
Office of the Atty. Gen., Los Angeles, Cal., for the
Dept. of Housing and Community Development.
Richard H. Levin, A Law Corp., Stephen A. Seideman,
Los Angeles, Cal., for Goldrich & Kest, Inc., a California
Corp.
TABLE OF CONTENTS
FACTS .Al2
JURISDICTION Aw
ANALYSIS A37
Title VIII A37
Plaintiffs’ Prima Facie Case A38
Supplemental Defendants’ Justifications A48
California Government Code 955008 A57
Discrimination on the Basis of Race A58
Discrimination on the Basis of Income A60
Discrimination on the Basis of Government Aasistance .. A62
~ CONCLUSION A63
APPENDIX A A66
MEMORANDUM AND ORDER ENJOINING
HAWTHORNE FROM VIOLATING TITLE
VIII, 42 U.S.C. §3604(a), AND CALIFORNIA
GOV.CODE §65008), (c) & (d).
FACTS
PREGERSON, Circuit Judge.
In February of 1972, persons living in the path of the
proposed I-105 or Century Freeway, the Los Angeles
chapter of the National Association for the Advancement
|
—Al2—
of Colored People (NAACP), and others! filed this
environmental and civil rights lawsuit against state and
federal governmental officials.* In April of 1972, the
plaintiffs amended the complaint to add the city of
Hawthorne, located in the path of the freeway, as an
additional plaintiff. The First Amended Complaint
requested injunctive and declaratory relief that would
require governmental officials to comply with federal
and state laws designed to (1) protect the environment;
(2) assure the availability of decent, safe, and sanitary
replacement housing.
In July of 1972, this court preliminarily enjoined
further work on the freeway project until federal and
state officials complied with environmental protection
and relocation assistance statutes. Keith v. Volpe, 352
F.Supp. 1324 (C.D.Dal.1972), aff'd en banc sub nom.
Keith v. California Highway Commission, 506 F.2d 696
(9th Cir.1974), cert. denied, 420 U.S. 908, 95 S.Ct. 826, 42
L.Ed.2d 837 (1975).
After this court’s decision, the parties entered into
negotiations that culminated in the Amended Final
Consent Decree (the Consent Decree). On September 22,
1981, this court approved the Consent Decree, dissolved
the preliminary injunction, and permitted further work
on the freeway project pursuant to the decree’s
' The plaintiffs also included the Sierra Club, the Environmental
Defense Fund, and the Freeway Fighters. See First Amended
Complaint at pp. 10-11.
2 The defendants included the Secretary of the United States
Department of Transportation, the Administrator for Region 7 of the
Federal Highway Administration, the Division Engineer for the
Department of Transportation, the California Highway Commission,
the California Department of Public Works, the Director of the
California Department of Public Works, and the State Highway
Engineer and Chief of the Division of Highways. See First Amended
Complaint at pp. 11-13.
—A13—
provisions. Under paragraphs VI and VIII of the decree,
this court retained jurisdiction to enforce or amend the
decree until the court enters a Judgment of Dismissal
| after full compliance with all terms of the decree.
» Amended Final Consent Decree at pp. 15-16.
One of the purposes of the decree is “to provide for the
housing needs of those living in the area of the proposed
path of the freeway.”? Amended Final Consent Decree at
p. 3. In particular, the decree requires that state and
federal defendants provide freeway displacees with 3700
units of decent, safe and sanitary replenishment housing
either by rehabilitating existing structures or constructing
new units. Jd, Exhibit B at pp. 1-4. Replenishment
housing is to be provided in accordance with the decree’s
“Housing Plan.” Amended Final Consent Decree at
pp. 4, 15. The decree incorporates an Exhibit B entitled
“Development and Implementation of Housing Plan,”
detailing the state and federal defendants’ commitments
to “the provision of housing as part of the I-105 project in
order to replenish the housing stock of communities
affected by the freeway and to relocate persons now
residing with the right-of-way.” Id., Exhibit B at p. 1. The
California Department of Housing and Community
Development (HCD) is the lead agency responsible for
coordinating and implementing the Housing Plan. Id,
Exhibit B at p. 9. The decree also establishes a Housing
Advisory Committee, which includes representatives of
each of the cities affected by the freeway, to assist HCD
in preparing the Housing Plan. Jd. Exhibit B at pp. 11-
14.
3 The decree also provides for an affirmative action program to
ensure that qualified women and minority contractors and employees
get a fair share of the construction contracts and the 20,000 jobs the
project is creating.
a *
Exhibit B sets out certain basic parameters HCD must
follow in preparing the Housing Plan. Amended Final
Consent Decree, Exhibit B at p. 16. Under the Housing
Plan, 55% of all replenishment units must be affordable
to low income households and 25% must be affordable to
moderate income households.4 Low and moderate
income households displaced by the Freeway must be
given first priority to occupy the replenishment rental
units.> Finally, the Housing Plan must place as many of
the units as possible in the primary zone” — i.e., a zone
six miles on each side of the proposed Century Freeway
right-of-way.®
“ Exhibit B states that at least 5% of all units must be affordable to
very very low income households, defined as households whose
incomes do not exceed 25% of the median income for the Los
Angeles Standard Metropolitan Statistical Area (LA SMSA) as
adjusted for household size; 25% of the units must be affordable to
very low income households, defined as households whose incomes
are greater than 25%, but not more than 50%, of the median income
for the LA SMSA as adjusted for household size; 25% of the units
must be affordable to low income households, defined as households
whose incomes are greater than 50%, but not more than 80%, of the
median income for LA SMSA as adjusted for household size; and
25% of the units must be affordable for moderate income
households, defined as households whose incomes are greater than
80%, but not more than 120%, of the median income for the LA
SMSA as adjusted for household size. Amended Final Consent
Decree, Exhibit B at pp. 20-21.
5 Second priority goes to households oa housing authority waiting
lists whose incomes fall within the target populations. Third priority
goes to all other households whose incomes fall within the target
populations. Amended Final Consent Decree, Exhibit B at pp. 23-24.
Exhibit B states that there shall be three distinct zones for
placement of the replenishment units:
The primary zone approximates an area within six miles on
each side of the I-105 right-of-way; the secondary zone extends
an additional six miles; and the tertiary zone yet another six
miles. The Housing Plan ... will attempt to place as many
—A15—
The freeway, when completed, will run through the
northern edge of Hawthorne, affecting census tracts
6017, 6020.02, 6021.01, and 6027. Although the freeway
will reduce Hawthorne’s housing stock by approximately
1,104 household units, the Housing Plan allocates only
275 units of replenishment housing to be built in
Hawthorne.’ Moreover, to date, there are only two
Century Freeway-related housing projects pending
construction in Hawthorne: a 44 unit condominium
development and a 26 unit apartment development,
neither of which required any zone changes, lot divisions,
or special use permits from the city. Exhibit 202 at pp. 3-
4. There is also a 42 unit condominium development on
property that the city is presently in the process of
annexing and 16 single family dwellings outside the city
limits, but within Hawthorne’s sphere of influence. Jd.
Even including the developments outside of Hawthorne’s
city limits, there are only 128 units of housing pending
development out of a total of 275 units allocated.
The litigation presently before this court concerns only
two Century Freeway apartment developments proposed
to be constructed in the Moneta Gardens area of
Hawthorne.
replacement units as possibile in the primary zone; if suitable
sites are unavailable, the remainder should be placed in the
secondary zone; if suitable sites still remain, the units may be
proposed for siting in the tertiary zone. If there are still
insufficient sites available in all three zones, the Project
Director may provide for relocation beyond the identified zones
but in each instance must attempt to locate the structures as
close to the Corridor area as possible and reasonable.
Amended Final Consent Decree, Exhibit B at p. 11.
The City of Hawthorne is within the primary zone and thus first
choice for the placement of replenishment housing.
7 Hawthorne’s representative on the Housing Advisory Committee
participated in setting this figure.
—Al6—
The first, the “Cerise Development,” located at 14330
Cerise Avenue, consists of 32 apartments units. On
January 26, 1984, the developer, Shapell Housing Inc.,
filed applications with Hawthorne’s Planning Depart-
ment for a change of zone from M-1 (limited industrial)
to R-3 (high density residential) and for a site
development permit. The Century Freeway Housing
Program had approved the project and the State had
agreed to fund it pursuant to the decree.® Exhibit 6 at
ae 8
The Planning Department recommended approval of
the applications, stating that:
Staff analysis of the unit design and project density
finds it to be a good example of a high density
development that adequately mitigates the overpow-
ering mass of typical high density residential
developments. Also, the spacial arrangement of the
units, in staff’s opinion, creates a living environment
which is protective and complimentary with other
residential development in the area.
Exhibit 6 at p. 2.
However, “(njotwithstanding” the project’s
advantages, the staff noted that “the project is unique to
the city as it is funded by a State agency.” Id. The staff
concluded that the Consent Decree’s requirement that
55% of the units be rented to low income tenants
conflicted with the city’s policy “to support the
dispersion of low income housing” because “the project
clearly presents itself as a concentration of low or
® The two rental housing projects at issue, the Cerise and the
Kornblum Developments, are both “‘turnkey projects.” HCD selects
the developers’ projects, funds the construction, and then sells the
projects to private parties after the projects’ completion. See Exhibit 6
at p. 3.
wht nn
moderate income households.” Jd. at p. 3. Therefore, the
staff recommended approval of the developer’s applica-
tions on condition that the developer record a covenant
providing that only 20% of the units could be rented to
low income households. Jd. at 5. The Planning
Department staff subsequently revised its recommenda-
tion for approval, increasing the percentage of low-
income units to 35%. Exhibit 7 at p. 4.
On September 5, 1984, the Planning Commission
approved the Cerise Development change of zone and
site development applications subject to the 35%
covenant the Planning Department had recommended.
Exhibit 208.
Shapell appealed the decision of the Planning
Commission to the Hawthorne City Council. Before the
public hearing on this appeal, the Director of HCD sent a
letter to the Mayor of Hawthorne, explaining that
because the 35% covenant conflicted with the terms of
the Consent Decree, the State would be unable to fund
the Cerise Development if the covenant were required.”
9 In letter dated November 21, 1984, the Director of HCD altered
her position and assured the city that “we will adhere to our prior
agreement that the projects will be maintained at the 35 percent low
income to 65 percent moderate/middle income throughout the life of
the project.” Exhibit 8 at p.2. HCD apparently believed that an
outright restrictive covenant was illegal under the California
Government Code and precluded State funding, but that an informal
agreement to administratively restrict the proportion of low income
residents was acceptable. Exhibit 21 at pp. 19-22. Whether or not this
position has any legal support, it was not persuasive to the Hawthorne
City Council, which insisted) on the covenant despite the
November 21 letter. Moreover, in HCD’s last written statement of its
position, a letter to the City Manager dated November 27, 1984,
HCD’s Chief Deputy Director reiterated that the 35% violation was
“a serious constraint upon the development of housing for lower-
income households, and a possible violation of Government Code
—A18&—
Letter of October 3, 1984, Exhibit 1 at p. 1. Nevertheless,
on January 14, 1985, the City Council affirmed the action
of the Planning Commission, including its requirement of
the 35% covenant.
The second development, the “Kornblum
Development,” located at 1300 and 13001 Kornblum
Avenue, is a 96 unit apartment complex. The developer,
Goldrich & Kest, Inc., filed applications for a lot split, a
zoning change from H (horticultural) to R-3 (residential),
and site development. The Century Freeway Housing
Program had earlier approved the project and the State
had agreed to fund it pursuant to the decree.
The Planning Department recommended approval of
the applications, stating that the Kornblum Development
was “‘a good exampie of a medium density development
that adequately mitigates the overpowering mass of
typical two and three story apartment developments in
the area.” Exhibit 9 at p.4. The staff recommended,
however, that the developer be required to record a
covenant, identical to the covenant required for the
Cerise development, providing that no more than 35% of
the units be rented to low income families. Id. at 7.
The Planning Commission held a public hearing on
~ October 3, 1984. A number of Hawthorne residents
appeared and expressed opposition to the development.!°
65008.” Exhibit 4 at p. 4.
10 The Minutes of the Hawthorne Planning Commission stated
that one of Hawthorne’s residents, Mr. Raymon Sulser, ‘‘discussed
who would be able to be housed in this project. Past experience has
shown that the city was never involved in the selection of who would
be located in a similar project. He had read the conditions
recommended by staff as outline in the staff report and asked who
would enforce these conditions. He was also concerned with traffic,
crime, etc. that this project would bring to the area.” Exhibit 15 at
p. 4.
WDE an ec nA Ea
—A19—
At the end of the hearing, the Planning Commission
} voted 3-0, with one abstention, to deny Goldrich & Kest’s
‘ applications for lot split, zone change, and site
development. Exhibit 15 at p. 6.
Goldrich & Kest appealed the Planning Commission’s
denial of approval to the City Council. The Council held
two public hearings on November 13 and November 26,
1984. Local residents attended the November 13 hearing
_and expressed opposition to the project. They raised
_ concerns about possible loss of taxes to the city, increase
/in traffic, overcrowding of schools, and failure to
maintain the building, but also expressed opposition to
i
the low income tenants that would reside in the
building.!!
1 Of the five who addressed the City Council, the two most vocal
residents expressed vehement opposition to the low-income status of
the future tenants. Mr. Raymon Sulser argued that
We have developments similar to this — although it’s not called
the same thing. I’m talking about HCD projects and everything.
One of them in [sic] as was stated at the last meeting, is
Nickerson Gardens. You know the crime that they have in
there. You're going to have some of the same problems in this
project that’s underway if it is built.
[I)t’s like a person going out and buying a Mercedes that can't
afford to make the payments on it. It’s not going to be around
long.
I — I think we've got enough of low-income housing in the city.
We've got a lot of HUD projects that a lot of these other cities
don't have. They fought it, and kept it out, and we didn't. And I
would like to see you deny this project. There’s — they can go to
other — I told them of, at the last, of a piece of ground, that’s
not actually in this city, that is going to be up for sale. Let them
build it there. I think we've got enough of it.
Exhibit 20 at pp. 19, 14, 22.
Mr. Gene Williams remarked that
these windows are going to be hanging out; the screens are going
—A20—
The developer addressed each of the legitimate
concerns raised. He explained that the tax loss to the city,
if any, would be minimal and offered to enter a ten year
in lieu of property tax agreement to make up the
difference in taxes between what the city would receive
from the Kornblum Development and what it would
receive from any private developinent. Exhibit 20 at
pp. 9-10. To alleviate the concerns about traffic and
schools, the developer negotiated with the Century
Freeway Housing Program to commit all 36 of the
development’s one bedroom units to senior citizens, who
will not have school age children or cause much traffic at
peak hours. Exhibit 20 at p.4. Finally, the developer
explained that the State requires him to create a reserve
of 1% of the construction cost to provide for ongoing
maintenance costs and that HCD will inspect the
premises yearly and order the owner and to make any
necessary repairs out of the reserve fund. Exhibit 20 at
pp. 53-59.
At the close of the November 13 hearing, the Council
members requested the City Manager to research the tax,
school, traffic, and maintenance issues. In a letter to the
City Council dated November 23, 1984, the City
Manager essentially confirmed what the developer had
stated at the November 13 hearing. Exhibit 16. He
to be hanging off. There's going to be graffiti. The little shrubs
they're going to plant in the parks are going to be litter on
Kornblum Avenue. ... We don’t — We don't need any more
hoodlums in our neighborhood. ... So it’s just going to be a
mess over in our neighborhood. But if, if they want to get it up
there in the high rent price bracket, why we can probably get
enough protection over there to handle those people.
I think that if they put units in that rent for $1000 per unit that
you get your higher class people in there.
Exhibit 20 at pp. 41-42.
—A21—
reported that the schools in the Moneta area could
accommodate between 150 and 200 more students and
that the Kornblum Development combined with another
40 unit replenishment development would produce
approximately 200 students. Jd. at p. 1. He also noted
that the developer had agreed to participate in a ‘school
development assessment” if the city imposed it on all new
residential developments larger than a single family
house. Jd. at p. 2. The Manager reported that only public
housing authorities, such as the Hawthorne Housing
Authority, could purchase the Kornblum Development
from the State and not pay taxes on it. Jd. at p. 3. He also
confirmed the developer’s assertion that HCD conducts
an annual inspection to determine when the 1%
maintenance fund should be expended. Id.
At the hearing on November 26, both Kornblum’s
developer and the executive director of the Century
Freeway Housing Program spoke at length to clarify
misconceptions about the mechanics of the low-income
rental program and to express their willingness to
accommodate Hawthorne’s concerns. Exhibit 21 at pp. 7-
12, 14-26.
At the end of the discussion, Councilmember
Ainsworth stated that she still desired to deny the
Kornblum applications for school overcrowding and
traffic reasons. Exhibit 21 at pp. 29-30. Councilmember
York responded:
If — if we just let the area alone to our own
developers, eventually they’re going to be developing
that area. We’re going to have an additional impact
whether it’s by this development, or additional
development down the line. That’s why I’m saying
we have more at issue to concern ourself with here
besides just this — just this one project. The project
as it sits on itself here looks — looks beautiful. But
—A22—
there are these other problems about density, school
impact — impacting that’s going to occur, I think
whether this project gets passed or not. I think that a
lot of the problems that you’re — that’s [sic] you’re
citing are — are going to be affected not just with
this project, but with future projects down the line,
whether they’re smaller projects than this one, or a
similar size project.
Id. at pp. 30-31.
Mayor Hocker agreed that “‘anything that we put over
there is going to put in a great deal of traffic. I think
anything that’s other than this is going to bring even more
traffic.” Exhibit 21 at p. 32. An unidentified councilm-
ember added that “‘my problem with this whole project is
you keep talking about the impact on the schools, and I’m
not convinced that by shutting this project down is going
to alleviate the impacting of the schools. Because if this
project isn’t built, there are going to be other projects
crop up, and we are going to have more school children in
the area, and I don’t see any way for us to get around
that.” Id. at p. 37.
Despite these comments of her co-councilmembers,
Councilmember Ainsworth moved to uphold the recom-
mendations of the Planning Commission. Exhibit 21 at
p. 31. Councilmember Bookhammer seconded the
motion, but explained his decision. He stated that his
“main goal is to commit, create to some additional senior
citizen housing which it appears that we’ve done. Not
come close to, but have done.” Jd. He voted against the
project, however, because “even after all of these
comments have been made and the things that were give
to the city by the developer, I still hear an adamant —
referendum from the residents of the neighborhood that
they still do not want this project, and they’re the ones
who have to live with the project being in their
neighborhood ... I have to go along with that.” Jd. at
—A23—
pp. 31-32. Councilmember Ainsworth agreed that “‘it’s
like Councilman Bookhammer said. The people in the
community don’t want it.” Id. at pp. 34-35.
When the issue was put to a vote, Councilmembers
Ainsworth, Bookhammer, and York voted against the
project, York admitting that he was voting “‘against my
better judgment.” Exhibit 21 at pp. 41-42. Only Mayor
_ Hocker voted in favor of the project. Councilmember
_ Ainsworth concluded that “They can fight City Hall and
_ be heard. I think tonight they’ve felt that they have been
_ heard, and I appreciate it.” Id. at p. 42.
In its resolutions denying the applications, the City
_ Council did not mention the public opposition, but gave
the following reasons for its decisions:
_ (1) the proposed lot split would create a parcel with
_ continued use for a wood frame single family dwelling
_ and represent poor lot configuration;!
(2) proposed zoning for the parcels would leave parcels
one and four zoned H (horticultural) and is contrary to
principles of good planning;!3
12 At the November 13 hearing, the developer tried to clear up any
misconceptions concerning the house currently on the property:
The 6,000 foot lot, which is a separate parcel on our parcel map,
is to be included in the development. It is presently occupied as
part of the nursery business. They are going to move the nursery
business to the El] Segundo frontage and abandon that house. At
that time, the house will be torn down and the area with the
landscaping will be contributed to the project.
Exhibit 20 at p. 49.
'3In response to concerns about leaving one half of the
‘approximately ten acre site zoned H (horticultural), the developer
prepared a plan to develop commercially the 5 acres that run along El
Segundo Boulevard. He offered to present the plan at the
November 13 hearing, but was not given the opportunity. Exhibit 20
at pp. 3-4.
—A24—
(3) the proposed development is in an area designated
by the Moneta Gardens Land Use Plan for medium
density residential use, and the proposed site develop-
ment plan would be high density residential use;!*
(4) the development would contribute to overcrowding
of schools;!>
14 The Planning Department, the agency that deals with the city’s
zoning matters on a daily basis, found the Kornblum development
compatible with the planned development in the Moneta Garden
Area:
Good planning states that the use of property shall be in
conformance with a “Plan.” The proposed Lot Spi::, Change of
Zone and Site Development is located within the Moneta
Gardens Land Use Area. The Moneta Plan identifies the land
use for the subject property as medium density.
The Moneta Gardens Plan for land use was predicated on the
assumption that a lower density was needed to keep the area
from being adversely impacted by large apartment complexes.
However, in staff’s opinion, commercial uses along El Segundo
Boulevard, a major traffic artery, would be the highest and best
use. As such, staff will be recommending that the Planning
Commission initiate the commercial zoning of the property
fronting upon El] Segundo Boulevard.
If the zoning of the parcels along El Segundo Boulevard occur,
then Parcels 2 and 3, if zoned medium density, would become
transitional lots. As such, the permitted density would be one
unit per 1250 square feet. However, the applicant's site
development plan proposes a density of 1998 square feet per
unit.
Staff analysis of the unit design and project density finds it to
be a good example of a medium density development that
adequately mitigates the overpowering mass of typical two and
three story apartment developments in the area.
Exhibit 9 at pp. 3-4 (emphasis added).
15 Although it is true that the Kornblum Development would
increase the enrollment in the schools servicing the Moneta Gardens
Area, the Superintendent of Schools’s most recent declaration states
that the schools could accommodate 159 more students and that
Kornblum will add 119 students. Exhibit 200 at pp. 4-5.
Sahar oA! Ge hm
—A25—
(5) the development would create undue traffic
congestion, noise and lack of adequate open space;!®
(6) the development is inconsistent with applicable and
specific general plans;!”
(7) the development encourages random and incompa-
tible and uses and discourages highest and best land
use;
(7) the site is not physically suitable for the proposed
density of the development;!?
(8) the development would be materially detrimental to
the public welfare by adding unmitigated traffic
congestion, noise, and other adverse conditions associated
with overcrowding and would be injurious to property
and improvements in the vicinity of the lot split and to
- adjoining and adjacent properties? and
(9) the development would defeat the intent and
purposes of the city’s zoning ordinance.*! See Exhibits
The real problem is Hawthorne’s approval of 795 other new
_ housing units in the Moneta Gardens Area which, in conjunction
_ with Kornblum, will overcrowd the schools. Exhibit 200 at p. 4. The
City Council simply singled out Kornblum as the culprit. The School
District “is not opposed to the particular development known as the
Kornblum project,” but “to the intense and rapid growth which has
_ taken place in the Moneta Gardens area.” Id. at p. 5.
16 There was absolutely no evidence presented to the City Council
concerning traffic, noise, or lack of open space.
'7 See supra notes 13-14.
'8 See supra notes 13-14.
'9 The Planning Department noted that although the permitted
density would be one unit per 1250 square feet, the Kornblum
development will have one unit for 1998 square feet. Exhibit 9 at p. 4.
At the November 26 hearing, Mayor Hocker noted that the
Kornblum Development was one-third less dense than other
developments in the area. Exhibit 21 at p. 34.
20 See supra note 16.
21 On the contrary, it appears that the development would further
—A26—
12-14.
In response to Hawthorne’s actions on the Cerise and
Kornblum developments, the plaintiffs in this lawsuit
submitted a motion for leave to file a supplemental
complaint to add allegations that Hawthorne** had
Ulegally refused to permit the construction of two
replenishment rental developments within its borders. At
the same time, the plaintiffs filed a motion to enjoin
preliminarily Hawthorne’s refusal to permit the con-
struction of the two developments. Hawthorne opposed
both motions and submitted to Goldrich & Kest a
the city’s policy of ‘‘encourag{ing] innovative uses of federal and
other programs that will provide housing.” Exhibit 2 at p. 23.
Hawthorne’s Housing Element, prepared by the Planning Depart-
ment, notes that “[r]apid increases in new and existing housing costs,
as has happened i in the past few years, have resulted in the inability of
lower income households to successfully compete for decent,
affordable housing.” Id. at p. 19. Therefore, “[o]ne of the City of
Hawthorne's policies is to expand housing opportunities for lower
income households but avoid concentration of such groups.” Jd.
Because “those elderly persons on fixed incomes who do not own a
home, or bought one late in life, are in the greatest need[,] .
[o]pportunities to provide housing for elderly persons are of highest
priority.” Id.
The Housing Element states that 286 new units will have to be built
yearly to meet Hawthorne's housing needs and that only 10.3 acres of
residentially zoned land are currently vacant. Jd. at pp. 24, 19. But
“[t]here are approximately 19 acres of land zoned for horticultural
uses, generally located within existing residential neighborhoods.
These properties, if rezoned to R-3 or R-4, would provide additional
capacity for 780 dwelling units. The Planning Department will
continued to support development proposals for the conversion of
horticultural properties to residential uses.” Jd. at p. 25.
22 The supplemental defendants include the City of Hawthorne;
the City Council of the City of Hawthorne; and Betty J. Ainsworth,
Steve Andersen, Chuck Bookhammer, Guy J. Hocker, and David M.
York, as members of the City Council. The court will hereinafter
refer to the supplemental defendants as ‘“‘Hawthorne” or “‘the city.”
—A27—
compilation of 52 alternate parcels of property on which
to build Century Freeway-related housing. Exhibit 202 at
) p. 7, exhibits B & C.
| On April 10, 1985, this court granted plaintiffs leave to
_ file the supplemental complaint*’ and also permitted the
_ California Department of Housing and Community
| Development, the California Department of Transporta-
tion, and Goldrich & Kest, Inc., to intervene in the
supplemental action.
The supplemental complaint and motion for prelimin-
ary injunction asserted five claims for relief** against the
City of Hawthorne and its officials for their actions in
imposing the 35% limitation on the number of units in
the Cerise Development that may be rented to low
income tenants and in denying the lot split, change of
zone, and site development applications for the Kornbl-
um Development:
1. violation of the Supremacy Clause of the United
States Constitution;
2. violation of the Fair Housing Act, Title VIII of
the Civil Rights Act of 1968, 42 U.S.C. §§3601-
3631;
3. violation of the Fourteenth Amendment to the
United States Constitution;
4. violation of California Government Code §65008;
and
5. violation of Equal Protection Clause, Article I, §7
of the California Constitution .?°
23 On April 15, 1985, the court issued an order detailing its reasons
for granting the plaintiffs’ motion to file the supplemental complaint.
24 The plaintiffs also alleged a violation of California Government
Code $65583 (West 1983 & Supp.1985), but dropped this cause of
action before trial. See Pre-Trial Conference Order at pp. 15-18.
5 The intervenors Goldrich & Kest, the California Department of
a
nil
—A28—
Pursuant to Fed.R.Civ.P. 65(a)(2), the parties agreed to
advance the trial of the supplemental action on the merits
and consolidate it with the hearing of the application for
a preliminary injunction. At a bench trial on April 17,
1985, the parties submitted all of the proffered
documents into evidence except Exhibits 5 & 11, which it
held to be inadmissibly hearsay. After both sides rested,
the court heard oral argument on behalf of all of the
parties and requested them to file post-trial briefs.
After close review of the briefs and all of the
documentary evidence, on May 10, 1985, the court
ordered the parties to further brief the question of the
plaintiffs’ and intervenors’ standing. On May 24, 1985,
the court reopened the proceedings and requested the
plaintiffs and state intervenors to compile information on
the racial and economic composition of the Hawthorne
census tracts affected by the freeway.?°
Transportation, and the California Department of Housing and
Community Development jointed only in the Supremacy Clause,
California Government Code, and California Constitution claims for
relief.
26On May 24, 1985, the court issued an order requesting the
plaintiffs and state intervenors to compile the following information:
1. The racial composition of the Hawthorne displacees in each of the
four census tracts affected by the freeway and of the residents in
each of the two tracts in which the Cerise and Kornblum
Development are proposed to be built.
2. The percentage of Hawthorne displacee households in each of the
four affected tracts that are low income households.
3. The percentage of the low income Hawthorne displacee
households in each of the four affected tracts that are minority
households.
4. The percentage of low income Hawthorne displacee households in
each of the four affected tracts that would desire to be relocated in
a Century Freeway housing project in Hawthorne.
The court also required that plaintiffs and state intervenors brief
the issue whether the requested information was admissible in
—A29—
In response to the court’s requests, the plaintiffs moved
to add four additional plaintiffs to eliminate any question
concerning their standing to bring the suit. In addition,
the plaintiffs and state intervenors went to two separate
sources to gather the requested racial and economic data.
First, the plaintiffs conducted a telephone and door-to-
door survey of the Hawthorne displacees currently
residing in the affected census tracts. Second, Caltrans
and HCD summarized information in existing Caltrans
files on the displacees and supplemented the file search
with phone calls and personal interviews. The plaintiffs
and intervenors thus presented three separate reports on
the racial and economic composition of the affected
census tracts: (1) the 1980 U.S. Census data, which they
originally submitted with their motion for a preliminary
injunction, (2) the results of the telephone and door-to-
door survey, and (3) the summary of Caltrans’s files.
The City of Hawthorne also summarized the
information in Caltrans’s files and submitted its summary
in addition to 1980 U.S. Census data on the racial
composition of the census tract in which the 52 alternate
parcels are located.
On July 24, 25, and 30, 1985, the trial resumed. The
court heard oral argument on the plaintiffs’ motion to
add additional plaintiffs and granted the motion. The
court also heard testimony and oral argument on the
admissibility in evidence of Exhibit 44, plaintiffs’
summary report of Dr. James H. Johnson’s social survey;
Exhibit 45, plaintiffs’ and state intervenors’ separate
summaries of the information contained in Caltrans’s
active files on Hawthorne displacees; Exhibit 46,
plaintiffs’ and state intervenors’ charts summarizing the
results of the numerous separate summaries contained in
evidence.
—A30—
Exhibit 45; and Exhibit 201, supplemental defendants’
summary of Caltrans’s files. At the conclusion of the
trial, the court ordered the exhibits admitted into
evidence.?’ The court then ordered the case submitted.
JURISDICTION
[1] This court has jurisdiction of the Supremacy
Clause and Fourteenth Amendment causes of action
pursuant to 28 U.S.C. §1343(a)(3) (1982)? and of the
Title VIII cause of action pursuant to 28 U.S.C.
§1343(a)(4) (1982).29 Because the federal claims “have
substance sufficient to confer subject matter jurisdiction
on the court” and the state and federal claims “‘derive
from a common nucleus of operative fact,” this court also
has pendent jurisdiction of the California Government
Code and California Constitution causes of action. United
Mine Workers of America v. Gibbs, 383 U.S. 715, 725, 86
S.Ct. 1130, 1138, 15 L.Ed.2d 218 (1966). See Aragon v.
27 On August 14, 1985, the court issued a “minute order” detailing
its reasons for admitting exhibits 44, 45 and 46 into evidence. This
order is attached at the end of this opinion as ‘Appendix A.”
28 Section 1343(a\(3) provides that the district courts “shall have
original jurisdiction of any civil action authorized by law to be
commenced by any person ... [t]o redress the deprivation, under
color of any State law, statute, ordinance, regulation, custom or
usage, of any right, privilege or immunity secured by the Constitution
of the United States, or by any Act of Congress providing for equal
rights of citizens or of all persons within the jurisdiction of the
United States. . . .° 28 U.S.C. $1343(a)(3) (1982).
29 Section 1343(a)(4) provides that the district courts “‘shall have
original jurisdiction of any civil action authorized by law to be
commenced by any person ... [t]o recover damages or to secure
equitable or other relief under any Act of Congress providing for the
protection of civil rights, including the right to vote.” 28 U.S.C.
S1343(a)(4) (1982).
—A3l1—
_ Federated Department Stores, 750 F.2d 1447, 1457 (9th
- Cir.1985).
| [2] The plaintiffs have standing to bring the Title VIII
cause of action under the principles enunciated in
_ Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99
| §.Ct. 1601, 60 L.Ed.2d 66 (1979). In Gladstone, the
Supreme Court held that Congress, in enacting Title
VIII, “expand[ed] standing to the full extent permitted
by Art. III.” Id. at 100, 99 S.Ct. at 1608. To establish
standing, the Title VIII plaintiff must merely show the
Article III minima — i.e., that he “‘suffered ‘a distinct
and palpable injury to himself’ ... that is likely to be
redressed if the requested relief is granted.” Id. (quoting
Simon v. Eastern Kentucky Welfare Rights Organization,
426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450
(1976)); see also Havens Realty Corp. v. Coleman, 455 U.S.
363, 375-76, 102 S.Ct. 1114, 1122-23, 71 L.Ed.2d 214
oy (“the only requirement for standing to sue under
Title VIII] is the Art. III requirement of injury in
fact.’”).
[3] In the instant case, three individual low-income
minority plaintiffs who will be displaced by the Century
Freeway testified that they would like to be relocated in
affordable housing in Hawthorne. Ms. Rose Hillman, A
Black Hawthorne resident with an income of $12,000,
testified that she would like to be relocated in the same
vicinity as her current residence and would apply to live
% The plaintiffs allege that Hawthorne violated section 3604,
which states that it is unlawful to “‘make unavailable or deny, a
dwelling to any person because of race, color, religion, sex, or
national origin.” 42 U.S.C. $3604(a) (1982). The plaintiffs therefore
brought their action under section 3612, which provides that “([t]the
tights granted by section [] . . . 3604... . of this title may be enforced
by civil actions in appropriate United States district courts without
regard to the amount in controversy. . . .” 42 U.S.C. $3612(a) (1982).
—A32—
at the Kornblum and Cerise Developments, if they are
built. R.T. 36-39 (July 24, 1985). Mr. Earl Wright,
another Black Hawthorne resident with an income of
approximately $12,000, also testified that he would like to
be relocated in the same vicinity and would apply to live
at the proposed Kornblum and Cerise Developments,
although, if he could afford it, he would prefer to own a
house instead of renting an apartment. R.T. 43-46.
Finally, Mr. Pablo Zapeta, an Hispanic Hawthorne
resident with a family income of approximately $14,000,
testified that he would like to be relocated in the
Hawthorne area and would apply to live in the proposed
Cerise and Kornblum Developments. R.T. 56-59. In
addition, Mr. Boris Storzch, of the Century Freeway
Housing Program, testified that Hillman, Wright, and
Zapeta would be eligible to live in either the Cerise or
Kornblum Developments under the Century Freeway
Housing Program Relocation Apartment standards. R.T.
76-77.
Hawthorne’s denial of the Kornblum applications and
imposition of a 35% quota on the number of units that
can be rented to low income tenants in the Cerise
Development jeopardizes the ability of Hillman, Wright,
and Zapeta to relocate in Hawthorne. As noted above,
there are, at most, only 128 units of relocation housing
currently available in Hawthorne. If more relocation
housing isn’t built soon — before Hillman, Wright,
Zapeta, and 1,100 other Hawthorne families are displaced
— the displacees will have to move outside of Hawthorne
to find affordable housing. These facts constitute a
“distinct and palpable injury.”*! Gladstone, 441 U/S. at
3! Hawthorne contends that to prove injury, Hillman, Wright, and
Zapeta must desire to be relocated on the particular blocks of the
particular streets where the Kornblum and Cerise Developments are
proposed to be built and that no other location inside or outside
—A33—
100, 99 S.Ct. at 1608. Because their action “focuses on
[two] particular project(s] and is not dependent on
speculation about the possible actions of third parties not
before the court,” the plaintiffs have also shown that their
injury is likely to be redressed if this court grants the
requested relief. Village of Arlington Heights v. Metropol-
Hawthorne would be acceptable to them. Hawthorne also contends
that Hillman, Wright, and Zapeta must desire to rent a residence as
their first choice, and cannot prefer ownership, to demonstrate that
failure to build the Kornblum and Cerise Developments injures them.
The court rejects both of these contentions. The plaintiffs need not
show that the only place they would like to live is in the Cerise or
Kornblum Developments. The need only show that they would like to
be relocated in Hawthorne, that affordable housing in Hawthorne is
scarce, and that they would like to live in either of the two
developments, if built.
In Hawthorne's own “Housing Element,” Hawthorne's Planning
Department admits that “[rjapid increases in new and existing
housing costs, as has happened in the past few years, have resulted in
the inability of lower income households, to successfully compete for
decent, affordable housing.” Exhibit 2 at p. 19 (emphasis added). Ms.
| Hillman testified that she had been looking for affordable housing in
Hawthorne for approximately six months and had been unable to find
any. R.T. 40 (July 24, 1985). The fact that the plaintiffs would be
equally happy living in a part of Hawthorne other than the Moncta
Gardens Area does not eliminate the injury caused by frustration of
the two developments if there is not sufficient affordable housing in
other parts of Hawthorne to absorb the displacees.
Neither does the fact that the plaintiffs may, like most people,
prefer to own a residence, rather than to rent one, erase the injury if
there are no affordable residences which they could purchase in
Hawthorne. Mr. Wright testified that he had been looking to
purchase an affordable residence in Hawthorne for over a year and
had been unable to find anything within his income. R.T. 45-46.
Therefore, despite Hawthorne’s arguments to the contrary, the
court finds that plaintiffs have demonstrated that Hawthorne's
frustration of the two developments has sufficiently injured their
ability to relocate in Hawthorne to give them standing to bring a suit
under Title VIII.
= —
itan Housing Development Corp, 429 U.S. 252, 264, 97
S.Ct. 555, 562, 50 L.Ed.2d 450 (1977). Therefore, the
court finds that the plaintiffs have standing to bring their
claim under Title VIII.°2
[4] For the same reasons, the court finds that the
plaintiffs have standing to bring their claim under
subsections (b) and (c) of California Government Code
§ 65008, which prohibit discrimination against a residenti-
al development on the basis of the race or low income
level of the intended tenants.*? In addition, intervenor
32 Plaintiffs also alleged that the NAACP had representational
standing to bring the Title VIII claim because ““NAACP has members
who are minority and/or low income displacees residing in the City
of Hawthorne and who are adversely affected by the actions of the
City of Hawthorne in reducing replacement housing opportunities for
displacees.” Supplemental Complaint, Exhibit A at p. 5.
But the only NAACP member who testified on behalf of the
plaintiffs, Ms. Minnie Hadley, is not a displacee. Instead, she is a
Hawthorne resident who is concerned that Hawthorne's denial of the
Kornblum and Cerise Developments would deprive her of the social
benefit of living in an integrated community. The Supreme Court has
acknowledged that such an injury is sufficient to confer standing to
bring a Title VIII claim. Gladstone, Realtors v. Village of Bellwood,
441 US. 91, 109-11, 99 S.Ct. 1601, 1612-14, 60 LEd.2d 66 (1979). But
the plaintiffs have not presented evidence proving that the denial of
the two developments would in fact deprive Hadley of the benefits of
an integrated society.
Hawthorne is a large city and there is no evidence that Hadley lives
in the Moneta Gardens Area, where the two proposed developments
will be built. Although Hadley testified that she wanted the Black
displacees to remain in Hawthorne so that Black representation in the
City government would not be diminished, R.T. 67-68 (July 24, 1985),
the Cerise and Kornblum Developments have a total of only 128
units, 70 (55% of 128) of which would be set aside for low income
residents. It is therefore speculative whether failure to build the
developments would have any significant effect on the character of
Hadley’s society or Black representation in the City government.
33 Section 6508 provides in pertinent part:
—A35—
Goldrich & Kest has standing to bring a claim under
; subsections (b) and (c) as the developer of one of the
_ residential developments discriminated against.
[5] The plaintiffs also have standing to bring a claim
under subsection (d) of California Government Code
— §65008,* which prohibits a city from imposing require-
_ ments on a developmental financially assisted by the state
or federal governments different from those imposed on
nonassisted developments. Because the plaintiffs are
clearly the intended beneficiaries of the state’s financial!
assistance, they have shown a “distinct and palpable
injury” as a result of the city’s requirement that the
developer record a covenant providing that no more than
35% of the units in the Cerise Development may be
rented to low income tenants: the State has refused to
finance the development if such a covenant is recorded,
and the developer will not build the development without
(b) No city, county, or city and county shall, in the enactment
or administration of ordinances pursuant to this title, prohibit
or discriminate against any residential development or
emergency shelter because of the method of financing or the
race, sex, color, religion, national origin, ancestry, or age of the
intended occupants of the development or shelter.
(c) No city, county, or city and county shall, in the enactment or
administration of ordinances pursuant to this title, prohibit or
discriminate against a residential development or emergency
shelter because the development or shelter is intended for
occupancy by persons and families of low and moderate
income. ...
Cal.Gov.Code $65008 (West 1983 & Supp.1985).
¥* Subsection (d) of section 65008 provides that:
No city, county, or city and county may impose different
requirements on a residential development or emergency shelter
which is subsidized, financed, insured, or otherwise assisted by
the federal or state governments or by a local public entity ...
than those imposed on nonassisted developments. . . .
Cal.Gov.Code $65008(d) (West 1983 & Supp. 1985).
—A36—
state assistance. Moreover, the state intervenors,
California Department of Housing and Community
Development and California Department of Transporta-
tion, have standing because they are the state agencies
providing the residential development financial assistan-
ce referred to in section 65008(d).>5
ANALYSIS
I. Hawthorne’s imposition of the 35% limitation
on number of units in the Cerise Development
that may be rented to low income tenants and its
denial of the lot split, zone change, and site
development applications for the Kornblum
Development violate Title VIII, 42 U.S.C.
§§ 3601-3631.
Under Title VIII, commonly known as the Fair
Housing Act, it is unlawful to “make unavailable ... a
dwelling to any person because of race, color, religion,
sex, or national origin.” 42 U.S.C. §3604(a) (1982).
33 As indicated by the following discussion in the body of this
memorandum and order, this court finds liability on both of the
statutory claims for relief. Therefore, it does not reach the state and
federal constitutional issues and need not determine whether the
plaintiffs or intervenors have standing to bring these claims. “‘It is
well settled that a court should refrain from deciding a constitutional
issue when a non-constitutional ground for decision is available.”
Guiterrez v. INS, 745 F.2d 548, 550 (9th Cir.1984) (citing Wolston v.
Reader’s Digest Association, Inc, 443 US. 157, 161 n. 2, 99 8.Ct. 2701,
2704 n.2, 61 LEd2d 450 (1979); Answander v. Tennessee Valley
Authority, 297 US. 288, 341, 56 S.Ct. 466, 480, 80 L.Ed. 688 (1936)
(Brandeis, J., concurring); Siler v. Louisville and Nashville Railroad
Co, 213 US. 175, 193, 29 S.Ct. 451, 455, 53 L.Ed. 753 (1909); Montana
Chapter of Association of Civilian Technicians, Inc. v. Young, 514 F 2d
1165, 1167-68 (9th Cir. 1979)).
AST
The circuits that have address the issue have agreed
‘that the phrase “because of race” does not require proof
of discriminatory intent; rather, proof of discriminatory
effect may be sufficient to demonstrate a violation of the
Fair Housing Act. See Smith v. Town of Clarktown, 682
F.2d 1055, 1065 (4th Cir.1982); Resident Advisory Board v.
Rizzo, 564 F.2d 126, 146-48 (3d Cir.1977), cert. denied,
435 U.S. 908, 98 S.Ct. 1457, 55 L.Ed.2d 499 (1978);
Metropolitan Housing Development Corp. v. Village of
Arlington Heights, 558 F.2d 1283, 1289-90 (7th Cir.1977),
cert. denied, 434 U.S. 1025, 98 S.Ct. 752, 54 L.Ed.2d 772
(1978); United States v. City of Black Jack, 508 F.2d 1179,
1184-85 (8th Cir.1974), cert. denied, 422 U.S. 1042, 95
S.Ct. 2656, 45 L.Ed.2d 694, reh’g denied, 423 U.S. 884, 96
S.Ct. 158, 46 L.Ed.2d 115 (1975).
[6] Once the plaintiff has established a prima facie case
by demonstrating racially discriminatory effect, the
burden shifts to the defendant to demonstrate that non-
discriminatory reasons justify its conduct. See Rizzo, 564
F.2d at 149; Black Jack, S08 F.2d at 1185. If the
defendant offers no valid non-discriminatory reason for
its actions, then the plaintiff has succeeded in proving a
Title VIII violation. If the defendant does offer valid
non-discriminatory reasons, the court must determine
whether they are substantial enough to justify the racially
discriminatory effect. See Smith, 682 F.2d at 1065; Rizzo,
564 F.2d at 1293; Black Jack, 5308 F.2d at 1186-87.
The circuits have applied different standards, however,
in determining how important a discriminatory effect is
to proving a prima facie case and in determining whether
the defendant’s proffered justifications are sufficient to
rebut the plaintiff’s prima facie case. Although the Ninth
Circuit has not yet addressed the proper standards to
apply, see Halet v. Wend Investment Co, 672 F.2d 1305,
1311 (9th Cir.1982), this court finds that Hawthorne
—A38—
would be liable under any of the standards the other
circuits have applied.
A. Prima facie case.
[7] The Third and Eighth Circuits seem to take the
position that proof of discriminatory effect alone is
always sufficient to establish a prima facie Title VIII
violation. Rizzo, 564 F.2d at 148; Black Jack, 508 F.2d at
1184-85. In contrast, the Seventh Circuit has held that
proof of discriminatory effect without a showing of
discriminatory intent establishes a Title VIII violation
only under some circumstances. Arlington Heights, 558
F.2d at 1290.
The Arlington Heights court listed four “critical
factors” in determining whether proof of discriminatory
effect is sufficient in each particular case: “(1) how
strong is the plaintiff’s showing of discriminatory effect;
(2) is there some evidence of discriminatory intent,
though not enough to satisfy the constitutional standard
of Washington v. Davis [426 U.S. 229, 96 S.Ct. 2040, 48
L.Ed.2d 597 (1976)]; (3) what is the defendant’s interest
in taking the action complained of; and (4) does the
plaintiff seek to compel the defendant to affirmatively
provide housing for members of minority groups or
merely to restrain the defendant from interfering with
individual property owners who wish to provide such
housing.” Id. at 1290. The Fourth Circuit has also
adopted this four factor analysis. Smith, 682 F.2d at 1065.
Without deciding whether the Seventh Circuit’s stricter
requirements for establishing a Title VIII prima facie
case are correct, this court finds that the plaintiffs in the
instant case not only have shown discriminatory effect,
but also have made a sufficient showing on two of the
other three factors under the Arlington Heights analysis
—A39—
to establish a prima facie case. The court will now
address each of the four factors.
(1) Effect. The evidence clearly demonstrates that
Hawthorne’s actions in imposing the 35% limitation on
the Cerise Development, knowing that such a limitation
would prevent HCD from funding the project, and in
denying the applications for zone change, lot split, and
site development on the Kornblum Development had a
racially discriminatory effect. The following chart
summarizes the results of the plaintiffs’ survey (Exhibit
44), the plaintiffs’ and state intervenors’ summary of the
separate summaries of Caltrans’s files (Exhibit 46), the
plaintiffs’ presentation of 1980 U.S. Census data
(Exhibits 5S0-A to 50-C), and the supplemental
defendants’ summary of Caltrans’s files (Exhibit 214):
1. Racial composition of Hawthorne displacees in
census tracts affected by the Freeway and of
residents in tracts where Cerise and Kornblum
Developments are proposed.
A. Tracts affected by the Freeway.
Plaintiffs’ Social Survey (Exhibit 44 at p. 9
26.9% White, 35.2% Black, 26.9% Hispanic, 7.5%
Asian or Pacific Islander, 2.4% Other. Total Black
and Hispanic = 62.1%. Total Non-White = 73.1%.
Plaintiffs’ and State Intervenors’s Summary of
Caltrans’s Files (Exhibit 46 at p. 2)
23.2% White, 37.4% Black, 29.9% Hispanic, 4.4%
Asian or Pacific Islander, 5.0% Other. Total Black
and Hispanic = 67.3%. Total Non-White = 76.8%.
Plaintiffs’ Summary of 1980 U.S. Census Data
(Exhibit 50-A at p. 2)
21% White, 54% Black, 21% Hispanic, 3% Asian
or American Indian, 1% Other. Total Black and
Hispanic = 75%. Total Non-White = 79%.
asin
Supplemental Defendants’ Summary of Caltrans’s
Files (Exhibit 214 at p. 1)
Ethnicity was known in 65.4% of the files
reviewed. Of those files, 8.2% were White, 27%
Black, 42% Hispanic, 2.6% Asian, 19% Other. Total
Black and Hispanic = 69%. Total Non-White =
91.8%.
B. Tracts where Cerise and Kornblum Developments
are proposed.
Plaintiffs’ Summary of 1980 U.S. Census Data
(Exhibit 50-B)
Kornblum: 59% White, 10% Black, 23% Hispanic,
8% Asian or American Indian, 1% Other. Total
Black and Hispanic = 33%. Total Non-White =
41%.
Cerise: 48% White, 10% Black, 31% Hispanic,
10% Asian or American Indian, 1% Other. Total
Black and Hispanic = 41%. Total Non-White =
52%.
2. Percentage of Hawthorne displacee households that
are low income households.
Plaintiffs’ Social Survey (Exhibit 44 at p. 10)
54.5% low income.
Plaintiffs’ and State Intervenors’ Summary of
Caltrans’s Files (Exhibit 46 at p. 3)
59.3% low income. »
Plaintiffs’ Summary of 1980 U.S. Census Data
(Exhibit 50-C)
35% low income.
Supplemental Defendants’ Summary of Caltrans’s
Files (Exhibit 214 at p. 1)
Income was known in 58.6% of the files. Of hone
files, 52% were low income.
mia
3. Percentage of low income Hawthorne displacee
households that are minority households.
Plaintiffs’ Social Survey (Exhibit 44 at p. 11)
Total Black & Hispanic = 63.8%.
Total Non-White = 71.7%.
Plaintiffs’ and State Intervenors’ Summary of
Caltrans’s Files (Exhibit 46 at p. 4)
Total Black & Hispanic = 73.6%.
Total Non-White = 78.5%.
4. Percentage of low income Hawthorne displacee
households that desire to relocate in a Century
Freeway housing project in Hawthorne.
Plaintiffs’ Social Survey (Exhibit 44 at p. 12)
67.4%
Plaintiffs’ and State Intervenors’ Summary of
Caltrans’s Files (Exhibit 46 at p. 5)
68.1%
Supplemental Defendants’ Summary of Caltrans’s
Files (Exhibit 214 at p. 1)
Relocation preference was known in 34.9% of the
files. Of those files, 27.8% indicated a desire to
relocate in Hawthorne.
The four sources of evidence indicate that 62.1%
(social survey) to 75% (U.S. Census) of the displacees are
Black and Hispanic, and 73.1% (social survey) to 91.8%
(supplemental defendants’ file summary) are non-White.
Although the four sources of evidence vary widely on the
' percentage of the displacee households that are low
| income households — from a low of 35% (U.S. Census)
to a high of 59.3% (plaintiffs’ file summary) — both the
social survey and the plaintiffs’ summary of Caltrans’s
files indicate that the percentage of the low income
households that are minority households is roughly the
anes
same as the percentage of the entire group of displacee
households that are minority households: 63.8% (social
survey) to 73.6% (plaintiffs’ file summary) Black and
Hispanic, and 71.7% (social survey) to 78.5% (plaintiffs’
file summary) non-White. Therefore, even though the
1980 U.S. Census data indicates that only 35% of the
displacee households are low income, see Exhibit 50-C,
the court can assume that the Census data, if available,
would show approximately 75% of those low income
households as non-White. See Exhibit 50-A at p. 2.
The Seventh Circuit observed in Arlington Heights that
“(t]here are two kinds of racially discriminatory effects
which a facially neutral decision about housing can
produce. The first occurs when that decision has a
greater adverse impact on one racial group than on
another.” 558 F.2d at 1290. In the instant case, roughly
two-thirds of the low income displacees are members of
an ethnic minority.°° The evidence also shows that
roughly two-thirds of the displacees would apply to live
in a state-assisted Century Freeway housing project in
Hawthorne.*’ Because two-thirds of the low-income
36 In contrast, the 1980 U.S. Census data on the two tracts where
the Kornblum and Cerise Developments would be built shows that
roughly four-tenths of the residents of these tracts are members of an
ethnic minority — approximately one-half of the percentage of
minority persons in the affected tracts. See Exhibit 50-B.
37 On the issue of the percentage of Hawthorne displacees that
desire to relocate in Hawthorne, the results of the social survey and
plaintiffs’ file summary were within 1% of each other: the social
survey indicated that 67.4% of the displacees would like to relocate
in Hawthorne, Exhibit 44 at p. 12, and the file summary indicated
that 68.1 % would like to relocated in Hawthorne, Exhibit 46 at p. 5.
In contrast, Hawthorne’s file summary indicated that only 34.9%
of the displacees would like to relocate in Hawthorne. Exhibit 214 at
p. 1. The court finds this result non-probative because, in compiling
its statistics, Hawthorne excluded responses that included Hawthorne
in conjunction with another location — i.e., Hawthorne did not count
a
displacees are members of an ethnic minority, failure to
build the Cerise and Kornblum Developments, which
provide subsidized housing for low-income displacees,
impacts minority displacees twice as hard as it impacts
white displacees. This showing alone is enough to
establish a racially discriminatory effect. See Smith, 682
F.2d at 1061, 1065 (there is “no doubt that the black
population ... was adversely affected by the termination
of the housing project” where “56% of all poverty-level
families in the county are black, and 69.2% of all black
families in [the county] are presumptively eligible for low
income housing’’); Arlington Heights,558 F.2d at 1288
(because “a greater number of black people than white
people in the Chicago metropolitan area satisfy the
income requirements for federally subsidized housing,”
the Village’s refusal to permit construction of a low
income housing project had a racially discriminatory
effect).
In addition, there is a second type of racially
discriminatory effect that a facially neutral decision
about housing can produce. This is “the effect which the
decision has on the community involved; if it perpetuates
segregation and thereby prevents interracial association it
will be considered invidious under Fair Housing Act
independently of the extent of which it produces a
disparate effect on different racial groups.” Arlington
Heights, 558 F.2d at 1290. See Black Jack, 508 F.2d at
1186 (trial court erred in failing to find discriminatory
effect where only 3% more Blacks were affected than
the displacees who indicated that they would like to live in
Hawthorne or Inglewood, Hawthorne or Torrance, etc. The fact that
a displacee would not mind living in another location does not
eliminate the injury to him from Hawthorne's failure to permit
construction of affordable housing in Hawthorne if the displacee
would like to relocate, among other places, in Hawthorne.
—A44—
Whites because the “ultimate effect” of ordinance in
question was to foreclose 85% of Blacks from obtaining
housing in Black Jack).
The ultimate effect of frustrating the Kornblum and
Cerise Developments in the instant case is to prevent low
income minority displacees for continuing to reside in
Hawthorne. If affordable housing is not made available
in Hawthorne to the displacees by the time they are
displaced, they will have to move out of Hawthorne
altogether. This is not simply a case of the city preventing
non-resident minorities from moving into the city: if
replenishment housing is not built in time, Hawthorne
will succeed in depopulating itself of a large number of
its current minority residents. Hawthorne’s own
“Housing Element” shows that the tracts affected by the
freeway have a higher percentage of minority residents
than the other tracts in Hawthorne.*® Exhibit 2 at p. 6.
The Housing Element also acknowledge that there is a
much larger percentage of minority than white residents
below the poverty level*? and that the “[r]apid increases
38 The plaintiffs submitted Hawthorne's Housing Element,
prepared by Hawthorne’s Planning Department, as plaintiffs’ Exhibit
2. The covzt finds that the Housing Element is less probative on the
issue of the racial composition of the four affected tracts than the
social survey (Exhibit 44) or the summary of Caltrans files (Exhibit
46) because the two sources of evidence are more current. However,
the Housing Element is the only source of evidence giving statistics
on all of the tracts in Hawthorne. Based on 1908 U.S. Census Data,
the Housing Element shows that the percentage of Blacks and
Hispanics in the affected tracts ranges from 40.6% to 93.6%. In
contrast, the tracts where the Cerise and Kornblum Developments
are proposed have only 23.8% and 33.1% Black and Hispanic
residents, respectively. The Housing Elements shows that the other
unaffected tracts in Hawthorne — i-., tracts not in the path of the
freeway — have a similarly low percentage of Black and Hispanic
residents. Exhibit 2 at p. 6.
39 Presumably based on 1980 U.S. Census data, the Housing
— vo
in new and existing housing costs. . . have resulted in the
inability of lower income households to successfully
compete for decent, affordable housing.” Exhibit 2 at
pp. 9, 19. With 1,104 Hawthorne families facing
displacement, and at most only 128 units of replenish-
ment housing in the process of construction in
Hawthorne, the failure promptly to start construction of
the two developments at issue seriously jeopardizes the
ability of a large number of minority residents to
continue residing in Hawthorne. Thus, the “ultimate
effect” of Hawthorne’s actions, like the immediate effect,
is racially discriminatory. See Rizzo, 564 F.2d at 149
(ultimate effect of city agencies’ actions in razing
integrated housing for urban renewal, but failing to build
replacement housing, was racially discriminatory).
(2) Intent. The court finds that the plaintiffs have
failed to show that the City Council acted with
discriminatory intent.“ But this is “the least important of
Element states that “15.4% of the Spanish population; 13.4% of the
Asian population; 92% of the Black population; and 7.5% of the
White population is below the poverty ievel.” Exhibit 2 at p. 9.
“ To show discriminatory intent, the plaintiffs rely primarily on a
statement by a local resident, Mr. Raymon Sulser, at the
November 13 hearing, that the Kornblum development will be like
“Nickerson Gardens,” a predominately Black housing project in
Watts. Exhibit 20 at p. 19. Even if “‘Nickerson Gardens” is a ‘‘code
word” for minority tenants, as the plaintiffs allege, “(t]he bigoted
comments of a few citizens, even those with power, should not
invalidate action which in fact has a legitimate basis.” Arlington
Heights, $58 F.2d at 1292.
The plaintiffs’ failure to prove discriminatory intent does not,
however, preclude them from establishing a Title VIII violation if
they show, in addition to discriminatory effect, that the City
Council’s decision to impose the 35% limitation on the number of
units in the Cerise Development that may be rented to low income
tenants and to deny the rezoning, lot split, and site development
applications for the Kornblum Development had no legitimate basis.
—A46—
the four factors” and “should be partially discounted. aa
Arlington Heights, 558 F.2d at 1292, 1294.
“[I]ntent, motive and purpose are elusive aia,”
. and attempts to discern the intent of an entity
such as a municipality are at best problematic....A
strict focus on intent permits racial discrimination to
go unpunished in the absence of evidence of overt
bigotry. As overtly bigoted behavior has become
more unfashionable, evidence of intent has become
harder to find. But this does not mean that _—
discrimination has disappeared. =
Id. at 1290 (quoting Hawkins v. Town of Shaw, 461 F.2d
1171, 1172 (5th Cir.1972) (en banc) (per curiam)). The
plaintiffs’ failure to prove discriminatory intent in
Arlington Heights did not preclude them from establish-
ing a prima facie case. Id. at 1294.: Likewise, the
plaintiffs’ failure to prove discriminatory intent:in the
instant case does not preclude them from establishing a
prima facie case by a sufficient showing that the ‘other
three elements exist.
(3) Justifications. Because Hawthorne “is a govern-
mental body acting within the ambit of legitimately
derived authority, [this court] will less readily find that
its action violates the Fair Housing Act.” Arlington
Heights, 558 F.2d at 1293. Municipalities are traditionally
afforded wide discretion in zoning. Village of Belle Terre
v. Boraas, 416 U.S. 1, 8-9, 94 S.Ct. 1536, 1540-1541, 39
L.Ed.2d 797 (1974). However, as discussed in Section B
below, the court finds that Hawthorne’s proffered
justifications for imposing the 35% limitation on the
number of units in the Cerise Development that may be
rented to low income tenants and denying the zone
change, lot split, and site development applications for
the Kornblum Development are merely pretextual. The
city’s failure to show any legitimate interest in taking
|)
these actions is another factor that weights in favor or the
plaintiffs.
(4) Prohibitory Remedy. The plaintiffs do not seek to
compel Hawthorne affirmatively to provide housing for
members of minority groups, but merely to enjoin
Hawthorne from interfering with private pro
developers who wish to provide such housing. ‘ “trike
courts are far more willing to prohibit cven nonintention-
al action by the state which interferes with an individual’s
plan to use his own land to provide integrated housing”
than to “require a defendant to appropriate money,
utilize his land for a particular purpose, or take other
affirmative steps toward integrated housing er
Arlington Heights, 558 F.2d at 1293. Thus, this factor also
favors the plaintiffs.
B. Hawthorne’s justifications.
[8] Because the plaintiffs have established a prima
facie case,the burden shifts to Hawthorne to offer non-
discriminatory reasons for its actions. The Eighth Circuit
has held that to rebut a prima facie case under Title VIII,
the defendant must “demonstrate that its conduct was
necessary to promote a compelling governmental
interest.” Black Jack, 508 F.2d at 1185.
In Rizzo, the Third Circuit rejected the Black Jack test,
holding that the defendant need only prove a compelling
governmental interest when the plaintiff has made a
showing of purposeful discrimination sufficient to
establish a constitutional violation. Rizzo, 564 F.2d at 148.
| Analogizing to the “business necessity” test applied in
Title VII cases, the Rizzo court formulated the following
test for Title VIII cases: ‘‘a justification must serve, in
theory and practice, a legitimate, bona fide interest of the
Title VIII defendant, and the defendant must show that
—A48—
no alternative course of action could be adopted that
would enable that interest to be served with less
discriminatory impact.” Id. at 149.
Hawthorne justified imposing the 35% limitation on
the number of units that could be rented to low income
tenants in the Cerise Development as furthering
Hawthorne’s policy of dispersing low income residents
throughout the city. Hawthorne justified its denial of the
Kornblum applications primarily because of potential
over-crowding of schools, increase in traffic, increase in
housing density, and loss of taxes. In addition, to disavow
any discriminatory intent or impact, Hawthorne submitt-
ed to the plaintiffs and intervenors a list of 52 alternate
sites on which Goldrich & Kest allegedly could build the
Kornblum Development. The court finds that regardless
of whether it applies the Eighth Circuit’s “compelling
interest” test or the Third Circuit’s “legitimate, bona fide
interest” test, Hawthorne has failed to meet its burden.
(1) Dispersion. The sole proffered reason for requiring
the developer to record a covenant restricting the number
of units rented to low income tenants at the Cerise
Development is to promote the dispersion of low income
tenants throughout the city. But Hawthorne’s policy, as
set forth in its Housing Element, is to “support the
dispersion of low income housing,” not low income
tenants. Exhibit 2 at p. 23 (emphasis added). There is a
subtle, but important difference between dispersing
tenants so that only a few are located in any one
neighborhood. It is the latter that Hawthorne has adopted
as its policy:
One of the City of Hawthorne’s policies is to expand
housing opportunities for lower income households
but avoid concentration of such groups. However,
the constraint to homogeneous dispersion through
the city is chiefly economic. The areas having the
—A49—
largest percentages of low income households are
characterized as having the lowest quality, values and
rents which in effect constitute affordable opportunit-
ies for such groups. Programs available to the citizens
that combat any or all of these factors are supported
by the city and will be provided whenever possible.
Exhibit 2 at p. 19 (emphasis added). Thus, Hawthorne’s
stated policy is to disperse housing projects into wealthier
areas, not disperse tenants among housing projects.
Because the Moneta Gardens Area is one of the wealthier
neighborhoods in Hawthorne, the proposed Cerise
Development actually furthers the city’s policy by
making rents affordable to qualified low income tenants.
To the extent Hawthorne is arguing that it has an
unstated policy of dispersing low income tenants, it has
provided no evidence of such a policy. If Hawthorne had
legitimately adopted such a policy, Hawthorne would be
requiring all developers to make a certain percentage of
their housing units affordable to low income
households.*! On the contrary, Hawthorne has never
imposed this sort of a requirement on any housing
‘' To support the proposition that dispersion of low income tenants
is a legitimate policy, Hawthorne cites the Sixth Circuit’s opinion in
Joseph Skillken & Co. v. City of Toledo, 528 F.2d 867 (6th Cir.1975),
vacated and remanded for further consideration in light of Village of
Arlington Heights v. Metropolitan Housing Development Corp, 429
US. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977), and Hills v. Gautreaux,
425 US. 284, 96 S.Ct. 1538, 47 L.Ed.2d 792 (1976), 429 US. 1068, 97
S.Ct. 800, 50 LEd2d 786 (1977). But at the same time that the
Toledo Plan Commission denied the developers’ request to rezone, it
“suggested that developers be required to include some low-income
homes in each new development.” 528 F.2d at 877. In the instant
case, Hawthorne has limited the number of low income tenants at the
Cerise Hawthorne but has made no effort to ensure that the excluded
low income tenants are distributed among other residential
Structures.
—A50O—
development except the Cerise Development.*2 Hawth-
orne’s justification of “‘dispersion” is simply a pretext for
discriminating against low income households and
preventing them from moving into better neighborhoods.
(2) Schools. Counsel for Hawthorne has argued that the
primary reason the City Council denied the applications
for the Kornblum Development was to prevent the
overcrowding of schools. Yet other actions by
Hawthorne’s officials have demonstrated the pretextual
nature of this justification.
From the period of December 1, 1984, to April 15,
1985, Hawthorne’s Building Department issued building
permits for 18 apartment developments, with a total of
426 apartment units, to be built in the city. Exhibit 38 at
p. 2. Ten of the 18 developments, 242 of the 426 units, are
located in the same Hawthorne School District school
attendance zone as the proposed Kornblum
Development. Jd. at p. 3.
Moreover, on March 29, 1985, the Planning Depart-
ment recommended approval of an application for a zone
change from H (horticulture) to R-3 (residential) for a 49
unit apartment development in the same _ school
attendance zone as the Kornblum Development. The
Planning Department’s report states that ‘“([s]chool
impact will be felt.” but it is “insignificant when
contrasted with the area[’]s potential to develop high
density residential apartments.” Exhibit 38, exhibit C at
p.2. The Planning Commission approved the zone
change on April 3, 1985, with no opposition from the
Hawthorne School District. Id, exhibit D.
42 Hawthorne’s Planning Department did, however, suggest that
the 35% limitation be imposed on the Kornblum Development, the
only other Century Freeway-related development the staff
considered. Exhibit 9 at p. 7.
—A51—
Finally, 22 of the 52 alternate sits on which Hawthorne
proposes that the Kornblum Development be built are
located in this same school attendance zone. Exhibit 37 at
p. 2.
Hawthorne cannot convincingly argue that it is
concerned with overcrowding schools servicing the
Moneta Gardens Area when it approves other develop-
ments in the area and suggests that Kornblum be built
elsewhere in the area. The developer made every effort to
minimize the Kornblum Development’s effect on the
school by committing all of the single units to senior
citizens and by agreeing to participate in a “school
development assessment” imposed on all similar resid-
ential developments. If Hawthorne is willing to approve
other developments in the area that have not made the
same concessions, the court will not permit it to deny the
Kornblum Development applications on the grounds of
school overcrowding.
(3) Traffic. Another reason Hawthorne gives for
denying the Kornblum applications is the increase in
traffic that the development will cause. Yet no evidence
was presented to either the Planning Commission or the
City Council supporting the proposition that the
development would unduly increase the traffic flow.
Of course, the development will create more traffic
than the horticultural nursery currently occupying the
parcel. But the nursery is admittedly underutilizing the
parcel‘? and will be replaced by some other user, either
“3 In its Housing Element, Hawthorne’s Planning Department
expresses the need for land on which to build residential
developments and supports proposals for the conversion of
| horticultural properties to residential uses where such properties are
located within existing residential neighborhoods. Exhibit 2 at p. 25.
The Department observed that most of the residential development is
occurring in the south-east quadrant of Hawthorne, where Moneta
—A52—
commercial or residential. As Mayor Hocker noted,
“anything that we put over there is going to put in a great
deal of traffic. I think anything that’s other than this is
going to bring even more traffic.’“* Exhibit 21 at p. 32.
Although, as noted above, there is no evidence
concerning comparative traffic flows, it is obvious that a
commercial development, such as a shopping center,
would create more traffic than the proposed apartment
development and that this lot is too deep to be feasible for
other residential development, such as single family
homes.
In short, this court finds increased traffic a conjectural
pretext for denying the developer’s applications.
(4) Density. Hawthorne also offer excessive housing
density as a reason for denying the Kornblum
applications. Again, absolutely no evidence was presented
to either the Planning Commission or the City Council on
the comparative density of alternate types of residential
developments.
What little evidence there is in the record on this issue
supports the conclusion that the project is, if anything,
less dense than the alternatives. The Planning Depart-
ment noted that the developer’s requested zoning of the
parcels to R-3 would permit 1250 square feet per unit, but
the proposed development has a density of 1998 square
Gardens is located, because the lots are large enough to make the
economics of apartment construction feasible. Jd. at p. 19-20.
“ In addition, the Kornblum developer tried to minimize the
traffic flow by committing the single units to senior citizens, who will
not cause much traffic at peak hours, and by repositioning the
entrances and exits to the garage so that the residents will exit on a
street different from the one they enter. At conference in chambers,
the developer also suggested that the city consider installing a traffic
light at the relevant intersection and offered to pay a portion, if not
all, of the associated costs.
~—>»
—A53—
feet per unit, 5/8 as dense as permitted. Exhibit 9 at p. 4.
The staff concluded that the project was ‘“‘a good example
of a medium density development that adequately
mitigates the overpowering mass of typical two and three
story apartment developments in the area.” Id. Because
the City Council heard no facts which would disprove the
staff’s conclusion, the Council cannot legitimately justify
denying the Kornblum applications on ground of
excessive density.
(5) Taxes. A number of the local residents present at
the November 13 hearing apparently believed that if a
non-profit organization purchased the Kornblum Devel-
opment from HCD, it would pay no taxes on the building.
Exhibit 20 at pp. 14, 30-31. In his follow-up letter to the
City Council, the City Manager explained that only
public housing authorities, such as the Hawthorne
Housing Authority, could by the building and pay no
taxes on it. Exhibit 16 at p. 3. He added that although the
county also has a housing authority, the county would not
buy a building in Hawthorne without an agreement from
the city. Id. In short, the entity that purchases the
building will have to pay property taxes on it, unless
Hawthorne allows its own or the county’s Housing
Authority to purchase the building.
The remaining question is whether the owner of
Kornblum will pay substantially less in taxes than would
the owner of a comparable non-Century Freeway
development. At the November 13 hearing, the Kornbl-
um developer explained that the building’s purchaser
would pay 1 % of the building’s value in property taxes to
the county and that the city gets only 7% of that 1%.
Thus, for every million dollars of the building’s value,
Hawthorne receives only $700 in property taxes. Exhibit
20 at.pp. 7-8. So, whether the building is valued at one or
two million dollars more of less will make no substantial
a a
difference in the amount of property taxes the city will
receive.
This court agrees with the City Manager that the
building will probably sell for less than a comparable non-
Century Freeway development. Exhibit 16 at p. 4. The
building’s value is generally determined by the income
produced. The percentage of the units set aside for low
income tenants will lower the income produced and
therefore lower the value. But, as noted above, even if the
building sold for 5 million instead of 7 million dollars, it
would make little practical difference to the city’s
coffers. Moreover, the developer agreed to record a 10
year covenant that would require the building’s owner to
pay any difference in property taxes between those based
-on the valuation the Hawthorne Building Department
would make (which would be the same as a comparable
non-Century Freeway building). Exhibit 20 at p. 8.
Therefore, the loss of taxes to the city, if any, on the
Kornblum Development will be far too minimal to justify
denying the developer’s applications.
(6) Alternate Sites. After this lawsuit was commenced,
Hawthorne submitted to Goldrich & Kest a compilation
of 52 alternate parcels of property upon which Century
Freeway replenishment housing allegedly could be built.
See Exhibit 202, exhibits B & C. Hawthorne argues that
the developer’s ability to build replenishment housing on
one or more of these 52 alternate parcels eliminates any
adverse effect on low-income racial minorities caused by
the city’s refusal to permit construction of the Kornblum
Development on its proposed site, 13000 and 13001
Kornblum Avenue.
To disprove adverse effect, however, Hawthorne must
do more than simply present a number of parcels where
replenishment housing could theoretically be built. The
burden is on Hawthorne to identify a parcel of land
—A55—
within Hawthorne which is properly zoned and suitable
for replenishment housing under state standards.
Arlington Heights, 558 F.2d at 1293. Moreover, time is of
the essence. If replenishment housing is not ready in
Hawthorne by the time its residents are displaced, they
will have to move outside of the city. Thus, Hawthorne
also bears the burden of identifying a parcel or
combination of parcels on which the Kornblum
Development, as presently planned, can be located
without undue delay. The time required for the developer
to draw up new building and construction plans to fit
parcels whose size or configuration vary significantly
from the Kornblum parcels and then to submit the new
plans for state approval would delay construction of the
replenishment housing past the date, even the time
required by the Century Freeway Housing Program to
approve re-siting the Kornblum Development on a
different parcel of property would jeopardize the
possibility of replenishment housing being available in
time.46
The court finds that Hawthorne has failed to meet its
burden of identifying a suitable alternate site for the
Kornblum Development. The staff of the Century
Freeway Housing Program reviewed the alternate parcels
and submitted to the court reasons why none of the
alternate sites are comparable to the proposed Kornblum
site. Exhibit 301A. Twenty of the parcels require
rezoning; 15 of the parcels have residential housing
currently located on them, violating one of the Century
Freeway Housing Program’s requirements for develop-
ment 21 of the parcels are surrounded by industrial or
commercial developments, violating the Housing Pro-
gram’s requirement that replenishment housing be
‘© See supra note 45.
—A56—
surrounded by compatible uses; 4 of the parcels have
current commercial use which the Housing Program does
not have authority to displace; 6 of the parcels are outside
of Hawthorne’s jurisdiction and must be annexed before
being considered within city limits; and 1 parcel is
currently under construction. Exhibit 301A. The Century
Freeway Housing Program staff could approve the
development of replenishment housing on only 3 parcels
— currently used as a park — which, when combined
together, would accommodate a total of only 25 units of
housing — 71 units less than the proposed Kornblum
Development Exhibit 301A at pp. 10-11.
Goldrich & Kest also reviewed the alternate parcels
and sent letters to owners of eight sites*’ that could
possibly be suitable for the Kornblum Development.
Exhibit 35 at p. 2. Three of the eight owners responded,
all stating that their properties were not available for sale.
Id. Hawthorne’s submission of the 52 alternate parcels
does not, therefore, disprove the adverse effect caused by
its refusal to permit the Kornblum Development to be
built at its proposed site.
In conclusion, none of Hawthorne’s purported
justifications are legitimate. Because the plaintiffs and
intervenors have established a prima facie case and
Hawthorne has failed to rebut it, the court finds that
Hawthorne has violated the Fair Housing Act. 42 U.S.C.
§3604(a).
II. Hawthorne’s imposition of the 35% limitation on
the number of units in the Cerise Development
that may be rented to low income tenants and its
47 Whereas Goldrich & Kest considered eight of the alternate sites
as possibly suitable for the Kornblum Development, Hawthorne
concedes that only 6 of the sites would accommodate the entire 96
unit development. Exhibit 202 at p. 7.
a *. ;
denial of the lot split, zone change, and site
development applications for the Kornblum
Development violate California Government
Code §65008.48
[9] The California legislature has extended the protec-
tion against discrimination in housing that Congress
provided in Title VIII. California Government Code
§ 65008 outlaws discrimination against residential develop-
ments in addition to people and outlaws discrimination on
the basis of income in addition to race. Section 65008
provides in pertinent part:
(b) No city, county, or city and county shall, in the
enactment or administration of ordinances pursuant
to this title, prohibit or discriminate against any
residential development or emergency shelter beca-
use of the method of financing or the race, sex, color,
religion, national origin, ancestry, or age of the
intended occupants of the development or shelter.
(c) No city, county, or city and county shall, in the
enactment or administration of ordinances pursuant
to this title, prohibit or discriminate against a
residential development or emergency shelter beca-
use the development or shelter is intended for
occupancy by persons and families of low and
moderate income. ...
_
48 The Eleventh Amendment's grant of sovereign immunity to the
States does not bar this court from determining whether Hawthorne's
officials complied with California law. Where, as here, relief against
s locality or its officials is not the equivalent of a monetary judgment
against the State, “the Eleventh Amendment does not apply to
‘countries and similar municipal corporations.’ Pennhurst State
School & Hospital v. Halderman, 465 US. 89, 104 S.Ct. 900, 920 n. %,
19 LEd.2d 67 (1984) (quoting Mount Healthy City School District v.
Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 572, 50 L.Ed.2d 471 (1977)).
—A58—
(d) No city, county, or city and county may impose
different requirements on a residential development
or emergency shelter which is subsidized, financed,
insured, or otherwise assisted by the federal or state
governments or by a local public entity ... than
those imposed on nonassisted developments... .
Cal.Gov.Code §65008 (West 1983 & Supp. 1985).
[10] As a federal court exercising pendent jurisdiction
over a state law claim, this court “‘must apply state law as
the state’s highest court would.” Hillery v. Rushen, 720
F.2d 1132, 1138 n. 5 (9th Cir.1983). But the California
Supreme Court has not yet decided a case involving
section 65008. Indeed, the only court that has done so is a
California Court of Appeal in Bruce v. City of Alameda,
166 Cal.App.3d 18, 212 Cal.Rptr. 304 (1985). In such a
situation, this court’s task is to use its’ “‘ ‘own best
judgment in predicting how the state’s highest court
would decide the case.’ ” Fiorito Brothers, Inc. v. Fruehauf
Corp, 747 F.2d 1309, 1314 (9th Cir.1984) (quoting
Takahashi v. Loomis Armored Car Service, 625 F.2d 314,
316 (9th Cir.1980)).
(1) Discrimination on the basis of race. Subsection (b) of
section 65008 prohibits discrimination against residential
developments “‘because of” the race of the intended
occupants.
The California Supreme Court has taken the position
that a showing of discriminatory impact on a racial
minority is sufficient to prove a constitutional violation.
See Crawford v. Board of Education of Los Angeles, 17
Cal.3d 280, 289-302, 130 Cal.Rptr. 724, 551 P.2d 27
(1976); San Francisco Unified School District v. Johnson, 3
Cal.3d 937, 957-58, 92 Cal.Rptr. 309, 479 P.2d 669, cert.
denied, 401 U.S. 1012, 91 S.Ct. 1266, 28 L.Ed.2d 549
(1971); Jackson v. Pasadena City School District, 59 Cal.2d
876, 881, 31 Cal.Rptr. 606, 382 P.2d 878 (1963). See
—A59I—
Larry P. v. Riles, slip op. at 374, petition for reh’g pending
(9h Cir. Jan. 23, 1984) (“‘To prove a violation of the state
constitution equal protection clause requires only a
_ showing of de facto segregation”).
[11] In enacting section 65008, the California legislat-
ure undoubtedly intended to provide greater protection
against discrimination in housing than the constitutional
guarantees. If a showing of discriminatory intent is
unnecessary to establish a constitutional violation, it
should likewise be unnecessary to establish a violation of
section 65008(b). Moreover, the California legislature’s
use of the Title VIII “because of race” language supports
interpreting section 65008(b) to require proof only of
discriminatory effect. In short, this court finds that a
showing of discriminatory impact is sufficient to
establish a violation under subsection (b) of section
65008.49
[12] Therefore, for the same reasons this court finds
that Hawthorne’s actions constituted a violation of Title
VIII, see supra pp. 1148-1156, this court finds that
Hawthorne’s imposition of the 35% limitation on the
number of units in the Cerise Development that may be
rented to low income tenants and denial of the Kornblum
applications constituted a violation of California Govern-
ment Code §65008(b).
(2) Discrimination on the basis of income. Subsection (c)
of section 65008 prohibits discrimination against a
residential development “‘because the development .. . is
‘7 Hawthorne concedes that the burden of proof applied to Title
VIII claims should be applied to section 65008 claims “‘since the two
laws are, but for the protection afforded low income persons in
Government Code Section 65008, substantially the same.” Supple-
mental Brief of the City of Hawthorne and the Members of the
Hawthorne City Council at p. 34.
—A60—
intended for occupancy by persons and families of low
and moderate income... .”
The issue before the court in Bruce v. City of Alameda,
166 Cal.App.3d 18, 212 Cal.Rptr. 304 (1985), was the
validity of an ordinance that provided “(flor a period of
five years no more government subsidized rental housing
units shall be developed in the City of Alameda, unless
development of such rental units is first approved by a
majority of the voters in the city of Alameda.” Jd. at 20,
212 Cal.Rptr. at 305. This ordinance facially conflicted
with both subsections (c) and (d) of section 65008. The
Bruce court held that “locally unrestricted development
of low cost housing is a matter of vital state concern” and
that California Government Code §65008 preempted the
city of Alameda’s power to enact such an ordinance. Id.
at 22,212 Cal.Rptr. at 307.
[13] In the instant case, the city of Hawthorne’s
imposition of a 35% limitation of the number of units in
the Cerise Development that can be rented to low income
tenants also facially conflicts with subsections (c) and (d)
of section 65008. See infra p. 1159 (discussing subsection
(d)). This court believes that the California Supreme
Court would reach the same conclusion as reached by the
Court of Appeals in Bruce. Therefore, this court holds
that California Government Code §65008 preempts the
City of Hawthorne’s power to impose a 35% limitation on
the number of units in the Cerise Development that can
be rented to low income tenants.
[14] Hawthorne’s denial of the Kornblum applications,
on the other hand, does not facially conflict with
California Government Code §65008(c). To date, no
court has addressed the plaintiff’s burden of proof under
section 65008(c) in these circumstances. This court must
decide whether section 65008(c) requires the plaintiffs
and the intervening developer to prove intent to
—A61—
discriminate on the basis of wealth, or merely that the
actions have a discriminatory effect on low income
persons. In light of the California Supreme Court’s
position that de facto discrimination on the basis of
wealth is sufficient to prove a constitutional violation,
Serrano v. Priest, 5 Cal.3d 584, 590, 96 Cal.Rptr. 601, 487
P.2d 1241 (1971), appeal after remand, 18 Cal.3d 728 135
Cal.Rptr. 345, 447 P.2d 929 (1976), cert. denied, 432 US.
— 907, 97 S.Ct. 2951, 53 L.Ed.2d 1079 (1977), this court
holds that proof of discriminatory effect is sufficient to
establish a violation of California Government Code
§65008(c).©
[15] Hawthorne’s denial of the Kornblum applications
for rezoning, lot split, and site development has an
unmistakably adverse impact on low income persons.
There is a dearth of decent housing in Hawthorne that is
affordable to low income residents. Exhibit 2 at pp. 17,
19. The construction of the Freeway will eliminate a
large number of affordable units. Over one thousand
households will be displaced and at least 35% of those are
low income households. At most, only 128 units of
replenishment housing are under construction in Hawth-
orne and only 55% of those units would be affordable to
low income displacees. Unless sufficient additional low
income housing is built in Hawthorne by the time its
residents are displaced, the low income displacees will
have to move outside of Hawthorne to find affordable
housing. In short, Hawthorne’s frustration of the
Kornblum Development has a greater adverse effect on
low income than on middle and high income Hawthorne
displacees because the low income displacees have the
least amount of affordable housing available to them.
© Hawthorne concedes that proof of discriminatory intent is
unnecessary. See supra note 49.
—A62—
And, as discussed supra pp. 1152-1156, this court finds
that all of Hawthorne’s purported justifications are
pretexts for discriminating against the low income
tenants that would reside in the Kornblum Development.
Therefore, this court finds that Hawthorne’s actions in
denying the Kornblum applications also violated subsec-
tion (c) of California Government Code § 65008.
(3) Discrimination on the basis of government assistance.
Subsection (d) of section 65008 prohibits a city from
imposing different requirements on a_ Sstate-assisted
development from those imposed on a_ nonassisted
development.
[16] Hawthorne has required no developer except the
Cerise developer to record a covenant providing that no
more than 35% of the units can be rented to low income
tenants. Indeed, it is clear that Hawthorne imposed this
requirement because the Cerise Development is a
Century Freeway-related development. In suggestioning
a limitation on the number of low income tenants, the
Planning Department stated that “the project is unique to
the city as it is funded by a State agency.” Exhibit 6 at
p. 2. The Planning Department felt that the California
Department of Housing and Community Development
would require too many of the units to be set aside for
low income tenants, conflicting with Hawthorne’s policy
of dispersing low income housing. Id. at p. 3. :
In light of the fact that Hawthorne has not imposed
this requirement on any other development and the fact
that Hawthorne imposed this requirement on the Cerise
Development because it is state assisted, this court finds
that Hawthorne's requirement of a covenant limiting to
35% the number of units rented to low income
households is a clear violation of section 65008(d).
It could be argued that Hawthorne also imposed
requirements on the Kornblum Development different
—A63—
from those it imposes on nonassisted developments
because it required the Kornblum developer to prove that
the development would not impact schools, density, or
traffic. As noted above pp. 1153-1154, Hawthorne has
approved a number of other developments in the same
area without requiring the developers to affirmatively
address these issues. Nevertheless, because this court has
found that the City Council’s denial of the Kornblum
applications violated Title VIII and subsections (b) and
(c) of California Government Code §65008, it need not
resolve the more difficult issue whether the denial also
violated subsection (d).
CONCLUSION
The Century Freeway is one of the most massive
freeway construction projects in the history of the United
States. Its construction in a populated area has the
potential to disrupt the lives of thousands of persons.
Plaintiffs filed the original lawsuit and participated in
formulating the Consent Decree to ensure that the
governmental agencies involved took steps to minimize
the disruption and the impact of the project on the
human environment. One of the central elements of the
decree is the provision of replenishment housing. If a
sufficient number of replenishment units are not built at
the same time the freeway is constructed, the people
displaced by the freeway may have to move substantial
distances, losing jobs, breaking up their families, and
interrupting their children’s education. It is therefore
vital that the State proceed with the development of
replenishment housing on schedule.
On the other hand, the cities affected by the freeway
have a vital interest in controlling the development of
their communities. In recognition, of this interest, the
Consent Decree provides that the replenishment housing
—A64—
shall be constructed “‘so as to be in conformity with
applicable zoning, subdivision and building code laws.”
Amended Final Consent Decree, Exhibit B at pp. 29-30.
The decree also directs this court, when evaluating the
progress of the housing program, to consider ‘“‘[t}he
ability of communities to which housing has been and is
anticipated to be relocated pursuant to the housing
program to absorb such housing without unforeseen and
excessive adverse impacts on their infrastructure, such as
schools, sewers and public services.” Id, Exhibit B at p. 7.
In light of the important interests on either side, this
court has thoroughly examined the evidence in support of
the plaintiffs’ allegations and the supplemental
defendants’ defenses. After careful consideration, this
court has concluded that the City of Hawthorne’s
imposition of a 35% limitation on the number of units in
the Cerise Development that can be rented to low income
households violates Title VIII, 42 U.S.C. §3604(a), and
California Government Code §65008(b), (c) & (d).
Hawthorne’s actions in denying the lot split, zone change,
and site development applications for the Kornblum
Development violate Title VIII, 42 U.S.C. §3604(a), and
California Government Code §65008(b) & (c).
For the reasons stated above, IT IS HEREBY
ORDERED that:
1. The supplemental defendants, the City of Hawth-
orne, the City Council of the City of Hawthorne; and
Betty J. Ainsworth, Steve Andersen, Chuck
Bookhammer, Guy J. Hocker, David M. York, as
members of the City Council of the City of Hawthorne,
are enjoined from imposing as a condition to their
approval of the change of zone and site development
applications for the proposed Century Freeway replenish-
ment rental development located at 14330 Cerise Avenue,
Hawthorne, California, the requirement that not more
ll
—A65—
than 35% of the apartment units in the development be
rented to low income persons.
2. The supplemental defendants are enjoined from
refusing to approve the lot split, change of zone, and site
development applications for the proposed Century
Freeway replenishment rental development located at
1300-13001 Kornblum Avenue, Hawthorne, California.
3. The court shall retain continuing jurisdiction to
implement and enforce the provisions of this Judgment.
4. This Memorandum and Order shail constitute the
court’s findings of fact and conclusions of law as
authorized by Rule 52 of the Federal Rules of Civil
Procedure.
The clerk of the court is requested to serve copies of
this Memorandum and Order, by United States mail,
upon the attorneys of record for the parties herein.
Fed.R.Evid. 1006.
APPENDIX A (See note 27, page 1144.)
August 14, 1985
ORDER RE: ADMISSIBILITY OF EXHIBITS
44, 45, 46, 53, 54, 56, and 57
Exhibit 44 — Summary Report of Social Survey
Conducted by Dr. James H. Johnson and Social
Data Analysts
[17] To admit this summary report into evidence, the
plaintiffs must not only comply with Fed.R.Evid. 1006,
but also prove that the underlying survey is admissible.
See United States v. Johnson, 594 F.2d 1253, 1255 (9th
Cir.), cert. denied, 444 U.S. 964, 100 S.Ct. 451, 62 L.Ed.2d
ee, i = ion ee a yee
Pe Te) eS ae le
—A66—
376 (1979). The court finds that they have met both of
these requirements.
First, the plaintiffs have established that a summary is
the appropriate way to present the survey data. Rule 1006
provides:
The contents of voluminous writings, recordings, or
photographs which cannot conveniently be examined
in court may be presented in the form of a chart,
summary, or calculation. The originals, or
duplicates, shall be made available for examination
or copying, or both, by other parties at reasonable
time and place.
Fed.R.Evid. 1006.
The court cannot conveniently examine the 253
completed survey questionnaires and compute the
percentages of the different responses to the 23
questions. The summary and charts in the report
prepared by Dr. James H. Johnson, Assistant Professor at
the Department of Geography, University of California
at Los Angeles, are a necessary aid to interpreting the
survey results. Because the plaintiffs provided the City of
Hawthorne with the underlying documents — the
completed survey questionnaires — Dr. Johnson’s report
is admissible under Rule 1006.
[18] Second, the court finds that the survey itself is
admissible as an exception to the hearsay rule under
Fed.R.Evid. 803(24). This “catch-all” exception provides
that the following type of statement is not excluded by
the hearsay rule, even though the declarant is available as
a witness:
A statement not specifically covered by any of the
foregoing not specifically covered by any of the
foregoing exceptions but having equivalent circumst-
antial guarantees of trustworthiness, if the court
determines that (A) the statement is offered as
—A6T—
evidence of a material fact; (B) the statement is more
probative on the point for which it is offered than
any other evidence which the proponent can procure
through reasonable efforts; and (C) the general
purposes of these rules and the interests of justice
will best be served by admission of the statement into
evidence.
Fed.R.Evid. 803(24).
The survey meets all of the conditions listed in
exception 24. First, the survey results are evidence of
facts material to the plaintiffs’ allegations that Hawth-
orne’s denial of the Kornblum Development applications
and Hawthorne’s imposition of a 35% quota on the
number of low income tenants in the Cerise Development
have an adverse racial and economic impact on the
Century Freeway displacees.
Second, the survey is more probative on the issue of
adverse impact that any other evidence which the
plaintiffs could procure through reasonable efforts. The
survey provides the most current information about the
Hawthorne displacees. The 1980 U.S. Census data is five
to six years old and the information in Caltrans’s files is
two to three years old.
Third, the general purposes of the rules of evidence
and the interests of justice will best be served by
admission of the survey into evidence. The rules of
evidence “shall be construed to secure fairness in
administration, elimination of unjustifiable expense and
delay, and promotion of growth and development of the
law of evidence to the end that the truth may be
ascertained and proceedings justly determined.”
Fed.R.Evid. 102. Admission of the survey results
eliminates the unjustifiable expense and delay of hearing
every Hawthorne displacee’s testimony concerning the
relevant facts. Moreover, admission of surveys promotes
—A68—
the development of the law of evidence because surveys
are often the most expeditious way pertinent information
may be ascertained and proceedings justly determined.
Fourth, the plaintiffs have established that the survey
has equivalent circumstantial guarantees of trustworthi-
ness. The survey meets the requirements for trustworthi-
ness set forth in the Federal Judicial Center’s Manual for
Complex Litigation (Sth ed. 1982) at 116:
(1) The proper universe was selected. The plaintiffs
attempted to obtain information on all of the households
currently located in the City of Hawthorne to be
displaced by the continuing construction of the Freeway.
Out of a total population of approximately 368 displacee
households currently residing in Hawthorne, 181 were
surveyed over the telephone and an additional 72 were
surveyed in door-to-door interviews. Hawthorne’s argu-
ment that plaintiffs should have also obtained
information on Hawthorne displacees who have already
moved from their Freeway-affected residences is meritl-
ess. The court must determine whether Hawthorne’s
actions regarding the Cerise and Kornblum Develop-
ments have an adverse impact on current Hawthorne
residents, not on former Hawthorne residents. Moreover,
it would be highly impracticable to track down the people
who have moved outside the vicinity of Hawthorne.
(2) A representative sample was drawn. In this case,
the plaintiffs attempted to obtain information on the
entire universe. Therefore, the degree to which a sample
represents the universe is not at issue.
(3) The mode of questioning the interviewees was
correct. Dr. Johnson testified that he designed the
questions to elicit the necessary information in as neutral
a way as possible. Prior to conducting the survey,
plaintiffs presented the questionnaire to Hawthorne, and
Dr. Johnson modified the survey in response to
—A69—
Hawthorne’s concerns. See Piper Aircraft Corp. v. Wag-
Aero, Inc, 741 F.2d 925, 931 (7th Cir.1984) (survey
admissible where proponent altered survey format in
response to objector’s criticisms). A simple reading of the
questionnaire shows that there are no trick or misleading
questions. See James Burrough Ltd. v. Sign of the
Beefeater, Inc, 540 F.2d 266, 278 (7th Cir.1976) (survey
admissible where questions “‘do not appear slanted or
misleading”).
Social Data Analysts, Inc., (SDA) the firm that
conducted the telephone portion of the survey, “pre-
tested” the questionnaire and determined that it was
understandable before conducting the full survey. Dr.
ohnson testified that SDA is experienced in conducting
surveys of this type and that the interviewers were
praduate students in social geography, trained to elicit
sccurate, scientific data rather than biased responses. Dr.
Johnson also testified that he personally oriented Mr.
arl Goldstein, the man who conducted the door-to-door
nterviews, and was satisfied that Mr. Goldstein would
dminister the survey instrument in a neutral, scientific
manner.
The court rejects Hawthorne’s contention that testim-
my of the president of SDA and/or the individual
iterviewers in necessary to establish trustworthiness. A
ading treatise discussing surveys as evidence states that
here is
no need to have anyone other than the survey
director testify at trial to substantiate the survey
results. The survey director testifies as an expert who
has devised and conducted a scientific poll or survey.
There should be no need for testimony from the
actual interviewers.... Any doubts as to the
accuracy of recorded responses can be dissipated by
"BEST AVAILABLE COPY
—A70—
verification checks which are common survey
procedure.
2 J.T. McCarthy, Trademarks and Unfair Competition
§ 32:53 at 782-83 (2d ed. 1984); see also Piper Aircraft, 741
F.2d at 931 (agrees with McCarthy that “‘the testimony of
a survey director alone can establish the foundation for
the admission of survey results”).
(4) Dr. Johnson and Social Data Analysts are experts
in the field of social research. Dr. Johnson’s resume,
exhibit 43, details his impressive qualifications. In
addition, Dr. Johnson’s testimony establishes the
qualifications of SDA. Dr. Stephen Cole, president of
SDA, has written one of the leading textbooks in the field
of social geography. SDA has conducted more than 150
surveys in the last 12 years, is a member of the National
Council on Public Opinion Polls, and adheres to the Code
of Ethics of the American Association of Public Opinion
Researchers. Finally, Dr. Johnson testified that Mr.
Goldstein, who has also worked for the U.S. Census
Bureau, has considerable experience in administering
surveys.
(5) The data was gathered and reported accurately. Dr.
Johnson testified that Dr. Cole gave the interviewers a
three hour training session on administering the
questionnaire so as to elicit accurate responses. As noted
above, the interviewers need not testify to establish the
accuracy of the surveying techniques; Dr. Johnson’s
testimony suffices. Because the questionnaire contained
two questions on income, Johnson was able to test the
responses for internal consistency and found that they
were consistent. Moreover, a comparison of exhibit 45
(results of door-to-door survey only) and exhibit 57
(results of telephone survey only) demonstrates that the
results of the telephone survey parallel those of the door-
to-door survey and supports the conclusion that neither
wK
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SDA nor Mr. Goldstein gathered or reported the answers
in a biased or inaccurate way.
(6) The questionnaire and interviewing were in
accordance with generally accepted standards in the
field. Dr. Johnson testified that the methods he and SDA
employed in conducting the survey were accepted social
science techniques.
(7) The survey was conducted independently from
attorneys for plaintiffs and state intervenors. Dr. Johnson
testified that he knew virtually nothing about the
litigation and therefore could relay little, if any,
information about it, to Dr. Cole or Mr. Goldstein.
In short, plaintiffs have made a sufficient showing on
each of these seven factors to support the court’s finding
that the survey has equivalent circumstantial guarantees
of trustworthiness, warranting its admission under Rule
803(24). Because that plaintiffs informed Hawthorne
about the survey sufficiently in advance of the trial to
provide Hawthorne with a fair opportunity to prepare to
meet it, exhibit 44 is admitted into evidence.
Exhibits 53, 54, 56, and 57, whose admissibility hinges
on the admission of exhibit 44, are also admitted.
Exhibit 45 — Summaries of Caltran’s Current/Active
files of Hawthorne Displacees.
After the court issued its order of May 24, 1985,
fequesting additional information,”! the plaintiffs at-
‘On May 24, 1985, the court issued an order requesting the
folowing information:
1. The racial composition of the Hawthorne displacees in each
of the four census tracts affected by the freeway and of the
residents in each of the two tracts in which the Cerise and
Kornblum Developments are proposed to be built.
2. The percentage of Hawthorne displacee households in each
of the four affected tracts that are low income households.
F prcT AVATLABLE COPY
—ATi~
tempted tu gather the requested information from
Caltrans’s files on forms called ‘“‘summaries.”’ Agents
from Caltrans filled out a summary form for each
Hawthorne displacees household, using information
currently existing in the Caltrans file and information
they personally knew about the displacees, but which was
not recorded in the file. Agents from the Department of
Housing and Community Development (HCD) then
supplemented the incomplete summaries’ with
information gained by telephone calls or personal
interviews.
[19] To admit these summaries into evidence, the
plaintiffs must satisfy Fed.R.Evid. 1006. They must also
show that the information in the underlying files and the
information added to each file’s summary by memory,
phone calls, or interviews after May 24, 1985, is
admissible in evidence. See United States v. Johnson, 594
F.2d 1253, 1255 (9th Cir.), cert. denied, 444 U.S. 964, 100
S.Ct. 451, 62 L.Ed.2d 316 (1979). The court finds that the
plaintiffs have met both requirements.
First, it would be inconvenient for the court to examine
all of the relevant Caltrans files to glean out the pertinent
information. The summaries are necessary to present
clearly the relevant facts contained in each file. And
although there was some dispute concerning plaintiffs’
responsibility to make the underlying files available to
Hawthorne at a reasonable time and place, Hawthorne
now concedes that plaintiffs have satisfied that burden.
3. The percentage of the low income Hawthorne displacee
households in each of the four affected tracts that are minority
households.
4.The percentage of low income Hawthorne displacee
households in each of the four affected tracts that would desire
to be relocated in a Century Freeway housing project in
Hawthorne.
a
Therefore, exhibit 45 meets the requirements of Rule
1006.
[20] Second, the court finds that the information
underlying the summaries is admissible under the public
records exception to the hearsay rule. Rule 803(8)(C)
provides that the following type of statement is not
excluded by the hearsay rule, even though the declarant
is available as a witness:
Records, reports, statements, or data compilations,
in any form, of public offices or agencies, setting
forth ... (C) in civil actions and proceedings and
against the Government in criminal cases, factual
findings resulting from an investigation made
pursuant to authority granted by law, unless the
sources of information or other circumstances
indicate lack of trustworthiness.
Fed.R.Evid. 803(8)(C).
Hawthorne concedes that the information contained in
Caltran’s files before May 24, 1985, the data the court
issued its order requesting additional i
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