Opposition Brief — City of Hawthorne v. Wright

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Text

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

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— 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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.

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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

a |

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

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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