Petition — Joseph Skilken & Co. v. City of Toledo
Supreme Court brief1976
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. IN THE JAN 15 1976
Supreme Court of the Mates
Ocroser TeRM, 1975 bacty
No 75-1002
JOSEPH SKILKEN AND COMPANY, ET AL., Petitioners
| v.
Crry or TOLEDO, OHIO, ET AL.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Tuzoporr M. Rowzn Martin E. SLOANE
Spenyler, Nathanson, Jay MULKEEN
Heyman, McCarthy and ArTHur D. Wor
Durfee National-Committee Against
935 National Bank Building Discrimination in Housing,
Toledo, Ohio 43604 Ine.
1425 H Street, N. W.
Wiis M. ConnELLy
895 National Bank Buildi Washington, D.C. 20005
Toledo, Ohio 43604 R. Micnag. Frank
Advocates for Basic Legal
Equality, Inc.
740 Spitzer Building
Toledo, Ohio 43604
Attorneys for
Plaintiffs-Appellees
Pumss or Brnon S. ADAMs Paintina, Inc., Wasnineton, D.C.
INDEX
Page
TH kincdc saaveweunscieetussacanatbene 1
SIN 6.6. cc bhik eedkewaliiedcteweiddassececes 2
GUMRETIUS PUMGMNGED ccc ccccciccnseusceccdsvecsss 2
ConsTITUTIONAL Provisions AND Statutes INvoLVeD.. 2
Ne I OS os cd icc cedacdseetsbbaceees 2
1. Toledo is a Racially Segregated City .......... 5
2. The Racial Segregation is the Result, in Large
Part, of Discriminatory Practices, Both Private
CE WU 6h sdb ced vcdscwaeisedsssousackenes 5
3. Effects of Residential Segregation in Toledo .. 8
4. Public Housing in Toledo is Perceived of, and is
in Fact, a Minority Housing Program ........ 10
5. The Need for Low Income Housing in Toledvu
is Critical, and Particularly Acute for Minorities 11
C.F Se ON i dk Kk odbd keds taecticouts 12
7. a. Disapproval of the Preliminary Platting of
Sd Te BENE GENO ou ducnsss cnsdniioncs 15
b. Disapproval of the Preliminary Platting of
the Holland-Sylvania Site ................. 16
ce. Disapproval of the Preliminary Platting and
Rezoning of the Heatherdowns Boulevard Site 17
D.. SI BE noob 5.00 06bs dedsedakaeecures 19
Reasons For Granting THe Writ .................: 22
I. Conflict Among the Circuits ................. 23
II. Relation to Arlington Heights ............... 30
III. Inconsistency With Prior Decisions Of This
EY duoubecneenndosguydcbsanecekssauut cu 35
ii TABLE OF AUTHORITIES
CasEs: : Page
Acevedo v. Nassau County, 500 F.2d 1078 (2d Cir.
MUNDY Sek uaeredeeddes cwkiedonntesens daeenede 30, 31
Citizens Committee for Faraday Wood v. Lindsay,
507 F.2d 1065 (2d Cir. 1974) cert. denied 421 U.S.
SERRE RES Eas 27, 31
Crow v. Brown, 457 F.2d 788 (5th Cir. 1972) affirming
_332 F. Supp. 382 (N.D, Ga. 1971) ........... 27-31, 36
Dailey v. City of Lawton, 425 F.2d 1037 (10th Cir.
a ng Es STREET 30, 31
Davis v. City of Toledo, 54 F.R.D. 386 (N.D. Ohio
UR es Te een ete 7
Gaston County v. United States, 395 U.S. 285 (1969) 8, 34
Gautreaux v. Chicago Housing Authority, 503 F.2d 930
(7th Cir. 1974), cert. granted sub nom.; Hills vy.
Gautreaux, 419 U.S. 962 (1975) ................ 36
Green v. County School Board, 391 U.S. 430 (1968) 36
Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968) .. 6
Kennedy Park Homes Ass’n. v. City of Lackawanna,
436 F.2d 108 (2d Cir. 1970), cert. denied, 407 U.S.
1010 EE Mneink Sa neakoes oid ketik cece cae 27-31, 36
Louisiana v. United States, 380 U.S. 145 (1965) ..... : 35
Mahaley v. Cuyahoga Metropolitan Housing Author.
ity, 500 F.2d 1087 (6th Cir. 1974), cert. denied, 419
“Ef enaie «30, 31
Metropolitan Housing Development Corp. v. Village
of Arlington Heights, 517 F.2d 409 (7th Cir. 1974)
a granted, 44 U.S.L.W. 3358 (U.S. Dee. 15,
Ml since take dans< ccm eis oe ane 22-25, 29-
Milliken vy. Bradley, 418 U.S. 717 (1974) : . _— :
Mitchell v. Robert DeMario Jewelry, Inc., 301 US. 988
6s RENEE ET AED tare 0
Table of Authorities Continued iii
Page
Joseph Skilken & Co. v. Toledo Metropolitan Housing
Authority, 380 F. Supp. 228 (N.D. Ohio 1974),
rev’d Nos. 74-2116 and 74-2320 (6th Cir. December
ee weer 1, 2, 5, 7-10, 12, 16, 18, 20-36
Swann v. Charlotte-Mecklenburg Board of Education,
OB UG. 1 CIGTE) 2 occ ccccvecsecesevesccescosss 23
United Farmworkers of Florida Housing Project, Inc.,
v. City of Delray Beach, 493 F.2d 799 (5th Cir.
WIFE) cicccvcccscccccsccsccdeccesvasccescsees 28-31
United Mine Workers v. Gibbs, 383 U.S. 715 (1966) .. 29
United States v. City of Black Jack, 508 F.2d 1179 (8th
Cir. 1974), cert. denied, 422 U.S. 1042 (1975) 26, 29-31
United States v. Crescent Amusement Co., 323 US.
TTB CIDER) 2 occccccmcescccsscsesecssosescncees 36
United States v. IBEW, Local 38, 428 F.2d 144 (6th
Cir.) cert. denied, 400 U.S. 942 (1970) ......-.-. 36
Vann v. Toledo Metropolitan Housing Authority, 113
F. Supp. 210 (N.D. Ohio 1953) ... 0 ..+---- ee eee 6
Ybarra vy. Town of Los Altos, 503 F.2d 250 (9th Cir.
BOVE) ncccccccccccccenesevececeducessssceseees 31
ConSTITUTION AND STATUTES:
United States Constitution
en TEE 6. os 6 6.00 606 6UWU 6000800608 OOS 2
ce TER | 6.idoc cue 00 4066b09es+0aeeess 2
GB UGC. UBGA1) ...ceccccccccccvessocsescecs 2
Oe BE gg iccccovecdévneedénnecseceouse 2
ey og ck dock dvcesenesneeect es outenes 2
ey a i ocis kannbae éengusuceens Obs 2
ee ee . veccansanhsheesneueesaeene 2
Civil Rights Act of 1968, Title VIII, 42 U.S.C. 3601-
nn a es til de ee oe heehee awe 2
Ohio Rev. Code § 4112.01, et seq. .........-. eee eeee 6
iv Table of Authorities Continued
Page
MISCELLANEOUS:
National Committee Against Discrimination in Hous-
ing—Urban Land Institute, Fair Housing and Ex-
clustonary Land Use (1974) 2.0... cece cccccuce. 31
6 Presidential Documents 666 (President’s Message to
Congress, May 21, 1970) ...................... 22
6 Presidential Documents 424. President’s Statement
on Equal Opportunity in Edneation, March 24,
BIOW vevccderess 6% Gakuen pikeeeue 23
U.S. Commission on Civil Rights, Twenty Years After
Brown: Equal Opportunity in Housing (1975) .. 6
ry
IN THE
Supreme Court of the United States
Octroser TERM, 1975
No.
JoserH SKILKEN AND CoMPANY, ET AL., Petitioners
v.
Crry or ToLepo, OHIO, ET AL.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
. OPINIONS BELOW
The Memorandum Opinion containing the findings
of fact and conclusions of law of the United States
District Court for the Northern District of Ohio,
Western Division, are reported at 380 F. Supp. 228,
and are reproduced at pages la-19a of the Appen-
dix to this Petition. The unreported order of the dis-
trict court is reproduced at pages 20a-24a of this
Appendix. The opinion of the United States Court of
Appeals for the Sixth Circuit, not yet officially re-
ported, is reproduced at pages 25a-53a of this Ap-
pendix.
2
JURISDICTION
The judgment of the Court of Appeals was entered
on December 10, 1975. The jurisdiction of this Court
is Invoked pursuant to 28 U.S.C. 1254(1).
QUESTIONS PRESENTED
a Whether proof of conduct by officials of the
City of Toledo and the Toledo City Plan Commission
blocking the construction of housing for low income
minorities in white areas of a racially segregated com-
munity establishes a prima facie case of racial dis-
crimination under the 1968 Fair Housing Act and
other federal civil rights laws.
2. Whether the defenses asserted by defendants
constitute a compelling governmental interest sufficient
to justify their racially discriminatory conduct.
. 3. Whether a federal district court, after a find-
ing of unlawful racial discrimination against munici-
pal officials, may order those officials to develop a rem-
edial plan of affirmative action to correct the effects
of such discrimination.
CONSTITUTIONAL PROVISIONS
AND STATUTES INVOLVED
This case involves the Thirteenth and Fourteenth
Amendments of the United States Constitution; 42
U.S.C, 1981, 1982, 1983, 2000d, and 3601 et seq. ‘The
relevant provisions are set forth at pages 93a-56a of
the Appendix to this Petition.
STATEMENT OF THE CASE
This proceeding was begun on May 28, 1974, and
arises out of an effort by a developer and a publie
—_—
3
housing authority te build desperately needed housing
for low income minority families in predominantly
white areas of the City of Toledo. The plaintiffs are
Josenh Skilken and Company (hereinafter Skilken),’
a developer of residential housing; the ‘Toledo Metro-
politan Housing Authority (hereinafter TMHA), a
local public housing authority ; and low income minor-
ity persons on behalf of themselves and all other low
income minorities living in Toledo who need decent
housing and seek the opportunity to live outside areas
of minority concentration in the City. The defendants
are the City of Toledo and its officials; and the Toledo
City Plan Commission and its members. The case in-
volves the efforts of Skilken to provide 140 units of
single family, detached housing under the Turnkey
IIIf Homeownership Program* on three dispersed
sites (Heatherdowns Boulevard, Stateline Road, and
Holland-Sylvania Road) in white areas of the City of
Toledo. The waiting list for the Turnkey III Program
is 70 percent minority.
The efforts of Skilken to construct the housing were
blucked by defendant Toledo City Plan Commission
through its disapproval of Skilken’s application for
preliminary platting’ on the Stateline Road and
1 The name of the developer is misspelled as ‘‘Skillken’’ in both
the district court and the Court of Appeals opinions.
The Turnkey III Homeownership Program is a form of low
rent public housing under which homeownership opportunities are
provided for eligible families.
? Preliminary platting is a procedure established by the Plan
Commission whereby an applicant files a preliminary drawing of
the proposed plat of land for development. The drawing shows the
design of the subdivision, including the layout of lots, streets, side-
walks, and sewers. The purpose underlying this procedure is to
assist developers in resolving any technical difficulties before ex-
pending time and monies in preparation of a final plat.
4
Heatherdowns Boulevard sites, and rescinding of its
original preliminary platting approval of the Holland-
Sylvania site. Further, the City Plan Commission ree-
ommended disapproval to the Toledo City Council of
Skilken’s application for rezoning of the Heather-
downs Boulevard site. On March 26, 1974, the City
Council formally denied Skilken’s rezoning applica-
tion.
The plaintiffs claimed that the defendants’ conduct
was racially discriminatory, in violation of Title VIII
of the Civil Rights Act of 1968 and other federal fair
housing laws and federal constitutional provisions.
The district court denied motions to intervene made
by the Toledo Branch of the National Association for
the Advancement of Colored People (on the side of the
plaintiffs) and by property owners in the Ragan
Woods Addition, in the area of the Heatherdowns
-~, Boulevard site (on the side of the defendants). Trial
was had during the week of July 15, 1974. The district
court’s decision was issued on August 28, 1974, and its
order was entered on October 8, 1974.
The facts on which this Petition is based are con-
tained in the record made at trial. Most of the facts
are succinetly set forth in the district court’s opinion.‘
In the course of its opinion reversing the judgment
of the district court, the Court of Appeals, per Judge
Weick, ignored certain key facts found by the lower
court and expressed some disagreement with certain
of the trial court’s conclusions. The Appellate Court,
* Other facts adduced at trial are contained in the Appendix in
the Court of Appeals and the Plaintiffs’ Exhibits which are part
of the trial record. References to the Court of Appeals Appendix
are referred to as ‘‘ App.’ References to Plaintiffs’ Exhibits in the
trial record are referred to as ‘‘ Pl. Ex.”’
5
however, did not purport to hold the district court’s
findings clearly erroneous. Plaintiffs will note those
areas of disagreement in this Statement of the Case,
with appropriate references to the record.
1. Toledo is a Racially Segregated City.
The district court made the basic finding that ‘‘the
City of Toledo is a racially segregated city with minor-
ity groups heavily concentrated in limited sections of
the City known as the ‘Southwest Corridor’ or the
‘Black Corridor’’’ (A. 6a). According to: uncontro-
verted testimony, not more than five percent of the
minority population resides outside the ‘‘ Black Corri-
dor,’’ App. 159, a phenomenon that plaintiffs’ expert
witness characterized as statistically unnatural.’ App.
104.
2. The Racial Segregation is the Result, in Large Part. of Dis-
criminatory Practices, Both Private and Public.
Another basic finding of fact by the district court
was that among the forces which have brought about
the segregated housing pattern in Toledo is racial dis-
crimination, including racial steering by real estate
brokers and discrimination by mortgage lending insti-
tutions.* A. 6a. The district court also found that
these forces are still at work. Id.
5 The Court of Appeals’ statement that ‘‘black families are living
in virtually all parts of Toledo,’’ A. 44a, in no way contradicts
the undisputed testimony that at least 95 percent of the minorities
are confined to the ‘‘Black Corridor.’’ Surely, this stark statistic,
as well as other uncontroverted evidence, supports the district
court’s finding that Toledo is racially segregated. Further, the
Court of Appeals did not purport specifically to hold that the
district court’s finding in this regard was erroneous.
*The Court of Appeals agreed that there has been private dis-
crimination in Toledo, but questioned whether any such discrimina-
6
The record also shows that governmental agencies,
including the defendant City of Toledo, have been
participants in establishing and perpetuating residen-
tial segregation in the City. For the most part, these
actions have centered around the provision and loea-
tion of low rent housing under the Public Housing
Program, the program which provides the focus of
this litigation.
Until 1953, the Toledo Metropolitan Housing Au-
thority (TMHA), a plaintiff in this action, followed an
avowed policy of racially segregated public housing in
the City. In that year, TMHA proposed to integrate
its public housing developments. As the record shows,
members of the City Council, under great pressure
from residents of white areas of the City, opposed
TMUA’s change of policy. App. 746, 755. While the
City Council later rescinded its disapproval, the U.S.
District Court for the Northern District of Ohio,
Western Division, ultimately ordered TMHA to im-
plement its proposed integration policy. Vann v.
TMH A, 113 F. Supp. 210 (N.D. Ohio 1953).
tion occurred after 1968. The Court of Appeals asserted:
[MJost of [the private discrimination], we believe, occurred
prior to Ohio’s Civil Rights Act, Ohio Rev. Code § 4112.01
et seq., and the decision of the Supreme Court in Jones v
Alfred H. Mayer Co., 392 U.S. 409 (1968) .... A. 49a
The Appellate Court offered no factual support for its remarkable
assertion that enactment of a state fair housing law and this
Court 's 1968 decision in Jones automatically eliminated housing
discrimination as a problem in Toledo. The persistence of housing
discrimination in the country’s cities and metropolitan areas has
been fully documented on numerous occasions. See, e.g., U.S. Com-
mission on Civil Rights, Understanding Fair Housing (1973);
U.S. Commission on Civil Rights, Twenty Years After Brown:
Equal Opportunity in Housing (1975). As the next sentence in
the text shows, its continued existence in the City of Toledo was
established by uncontroverted evidence presented at trial.
7
The district court found that even after the Vann
decision, TMHA, through selection of sites for the
construction of family public housing, contributed sig-
nificantly to the City’s segregated housing patterns.
A. 6a. The City was a participant with TMHA.
Through its consistent disapproval of family public
housing sites in predominantly white areas, the City
assisted and participated with TMHA in creating and
perpetuating the City’s segregated housing patterns.
In recent years, TMHA has actively sought to pro-
mote racially integrated housing. The City has con-
sistently sought to block these efforts and has failed to
fulfill its »wn equal housing opportunity obligations.
In 1970, the City Council, under great pressure once
again from area residents, disapproved the location
of Turnkey public housing (the same kind of housing
involved in this suit) on four sites in predominantly
white areas of the City. Pl. Ex. 126. Subsequent to
this action, the U.S. Department of Housing and Ur-
ban Development (hereafter HUD) found the City
Council’s conduct in violation of federal civil rights
laws, and, as a consequence, suspended the payment
of federal monies allocated to the City. App. 722-724;
Pl. Ex. 78. Simultaneous with this HUD action, the
U.S. District Court for the Northern District of Ohio,
Western Division, enjoined the City Council from
taking any action which would interfere with the se-
lection of those four sites. Davis v. City of Toledo, 54
F.R.D. 386 (N.D. Ohio, 1970).
In 1973, the City was again put on notice that it
was perpetuating existing patterns of racial segrega-
tion through its failure to provide equal housing op-
portunities and to comply with federal equal oppor-
tunity requirements. In that year, HUD found: ‘‘The
8
basic Equal Opportunity Requirements . . . have not
been implemented [by the City].’’ App. 733. HUD also
found : ‘‘ Necessary action to alter the paviern of racial
concentration in various areas of the City has not been
taken, nor has affirmative action to promote open
housing within City Boundaries.’’ Id. That finding was
confirmed by the Director of the City’s own Depart-
ment of Community Development, who testified that
the City has not performed as well in the area of equal
opportunity as it should. App. 356.
Thus, uncontroverted evidence shows that the seg-
regated housing patterns that exist in the City of To-
ledo result, in large part, from racially discriminatory
housing practices, and that the defendant City of To-
ledo, through action and inaction, has substantially
contributed to the existing residential segregation.’
3. Effects of Residential Segregation in Toledo
The racially discriminatory practices which have
created and perpetuated Toledo’s racially segregated
‘ The Court of Appeals, while it ignored this uncontroverted
evidence, did not appear to contradict it. At one point, the Court
stated: ‘Members of the City Council did not cause nor create
the concentration of black people in Toledo... .’’ A. 49a To the ex-
tent the Court believed that the Council members were not solely
responsible or that all of the present members are not blameworthy,
it is correct. The petitioners do not claim, nor need they, that the
racial residential patterns of Toledo were created entirely by City
officials. At most, we need only prove, as the record amply demon-
strates, that the patterns ‘‘were in any significant measure caused
by governmental activity.’’ Milliken vy. Bradley, 418 U.S. 717, 756
n.2 (1974), (Stewart, J. concurring), And the ‘‘governmental
activity’’ may be that of the defendants or any other officials. See
Gaston County v. United States, 395 U.S. 285 (1969). To the ex-
tent the Court of Appeals’ statement reflects the belief that the
City Couneil in no way contributed to the racial residential pat-
terns, it is in total conflict with the evidence.
9
housing patterns have not only denied minorities equal
housing opportunities, but have also denied minorities
equal educational opportunities and markedly re-
stricted their access to standard housing.
Toledo’s segregated housing patterns are reflected
in the racial composition of its public schools. The
district court found: ‘‘As a result of the segregated
housing pattern in the City there is a great disparity in
the racial composition of both elementary schools .. .
and high schools. ...’? A. 6a n.9. Statisties introduced
at trial show that 70 percent of the black elementary
students enrolled in the Toledo Pubiic School District
attend an elementary school which is 75 percent or
more black. In sharp contrast, the Washington Local
School District, which serves the northerly and north-
westerly portions of the City, has only 25 black stu-
dents out of a total enrollment of 11,401 pupils. App.
715-716, 718-719.°
In addition to segregating Toledo’s public schools,
the City’s racially discriminatory practices, in confin-
ing minorities to the ‘‘ Black Corridor,’’ have also re-
sulted in markedly restricting minority access to de-
cent, safe, and sanitary housing. Evidence introduced
at trial showed that there is a positive correlation be-
tween minority housing patterns and poor housing
quality and that minorities have been confined to
cheaper, older homes. App. 103-104, 775, 777-789.
® Children residing in the public housing developments, which
are at issue in the present case, would attend predominantly white
schools in the Maumee, Washington Local, and Toledo Public
School Districts. A. 7a; App. 424, 715-721.
. 10
4. Public Housing in Toledo is Perceived of, and Is in Fact. a
Minority Housing Program.
According to uncontroverted testimony at trial, To-
ledo residents, including officials of the defendant To-
ledo City Plan Commission, perceive public housing
as a program that serves mostly racial minorities.’
App. 362, 242-243, 493. This perception is based in
fact. The record shows that 70 percent of the low in-
come families who reside in family public housing in
Toledo are minorities. Further, 70 percent of the ap-
plicants on TMHA’s waiting list for family public
housing are minorities. And 50 percent of the minor-
ity population is eligible for public housing. A. 7a-8a.
Finally, 70 percent of those persons accepted into the
Turnkey III Homeownership Program (those who
would be afforded the opportunity to move into the
Skilken homes) are minorities. App. 714. The district
court, on the basis of these statisties, drew the ‘‘in-
escapable conclusion”? that ‘‘decisions regarding pub-
1 housing disproportionately affect minority groups.”’
10
* For example, the then Chairman of the defendant City Plan
Commission testified that it was his understanding that more blacks
than whites lived in public housing. He also admitted in the course
of his testimony that he has characterized public housing residents
as being ‘‘dirty, lazy and shiftless.’” App. 243.
"The Court of Appeals, in its statement of facts deemed rele-
vant to its decision, inexplicably ignored these important statistics
and chose instead to focus solely on statistics relating to persons
eligible for public housing, regardless of whether thev had applied
or otherwise expressed any need or interest. According to these
Statistics, of the 35,000 Toledo households eligible for publie hous-
ing, 79 per cent were white and 21 per cent were black. A.44a. The
Appellate Court concluded that ‘‘there are more than three times
as many whites who need public housing than there are blacks
needing housing.’’ Id. The Court of Appeals, however, did not
purport to hold that the district court’s finding on the racial
impact of the defendants’ actions was erroneous.
ed! seer Seh re TEs ee soe ae tn cs ee
ee ne ee Se een ee Toe
11
5. The Need for Low Income Housing in Toledo Is Critical, and
Particularly Acute for Minorities.
The record shows that there are approximately
20,000 sub-standard units in the City, App. 738, and
that the vacancy rate for standard low and moderate
income housing is less than two percent, considered
‘‘eritical’? by HUD. App. 317-318. The record also
shows that 40 percent of the City’s low and moderate
income population lives in sub-standard housing and
that 75 percent of these inadequately housed people
are minorities. App. 319, 739.
Actions by the City have exacerbated the housing
problems of the poor, and particularly the minority
poor. Since 1968, the City’s Neighborhood Develop-
ment Program has been responsible for the demoli-
tion of approximately 2,900 units of housing in pre-
dominantly black areas of the City. App. 327. Fully
90 percent of those persons who have been displaced
and relocated since 1968 as a result of the City’s dem-
olition activities have been black. App. 729-730. De-
spite a federal requirement that the City assure that
all units that are demolished be replaced, little more
than half of the 2,900 demolished units have, in fact,
been replaced. App. 326-327.
HUD has criticized the City for its failure to take
aggressive action in making low income housing units
available and urged the City to ‘‘take immediate and
sustained action to assure that housing needs of low
income families and individuals are being met.’’ App.
728. According to undisputed testimony at trial, at
the very time the defendants were blocking construe-
tion of the Skilken homes, the City was including these
same units in a Workable Program proposal for addi-
12
tional HUD funding. App. 343-345, 743. As the district
court found:
This creates a situation whereby the City seeks
funds for construction of public housing and then
turns around and rejects the proposals of the
developer which would implement its stated
policy. A. 16a n.19.
6. The Skilken Proposal
The Skilken Proposal called for construction of 140
units of single family, detached houses on four sites
dispersed throughout the City, outside the ‘‘ Black
Corridor.’’ The units were to be constructed under the
Turnkey III Home-ownership program. The waiting
list for this program in Toledo is 70 percent minority.
Under the Skilken proposal, 50 units were to be con-
structed on Heatherdowns Boulevard, in a subdivision
to be named Denver Terrace; 46 units were to be con-
structed on Holland-Sylvania Road, in a subdivision
to be named Chesterfield Heights; 34 units were to be
constructed on Stateline Road and Lewis Avenue, in
a subdivision to be named Statlin Terrace; and ten
units were to be constructed on scattered lots on Te-
cumseh Avenue.”
The housing units to be constructed on these sites
are to be of high quality. Pl. Ex. 185, p. 33. Further,
Skilken is an experienced builder of excellent reputa-
tion and proven reliability. App. 708-709. Coustrue-
tion costs are estimated at $30,000-$35,000 per unit,
as high or higher than the average price of houses in
' The Tecumseh Avenue units are not at issue in this case, since
no approvals by the City Council or Plan Commission are neces-
sary.
Abe
one MOP Ae etm i etn OR le tl oo ln tea Ne Re EE Oh cw
13
the areas in which the Skilken houses were to be con-
structed. App. 681, 699.”
In the process of selecting the above sites, Skilken
was obliged to conform to Plan Commission and
TMHA policies. Because of the high concentration of
minorities and abundant amount of low income sub-
sidized housing in the ‘‘Black Corridor,’’ the Plan
Commission has developed a policy of disapproving
the construction of such housing in the ‘‘Biack Corri-
dor.’’ App. 106-109, 136-138, 161, 190-194, 209, 214.
Similarly, TMHA, pursuant to HUD directives, re-
quires that sites be located outside areas of minority
concentration. App. 382-383.
The record shows that there are only 950 acres of
land in Toledo available for the development of low
and moderate income housing outside the ‘‘ Black Cor-
ridor.’’ App. 790. Skilken had to search for approxi-
mately two years to find sites which conformed to
TMHA and Plan Commission site selection policies,
examining some 40 different locations. In the process,
Skilken worked closely with TMHA and Plan Commis-
sion staff to assure that they were in conformance
with the policies of those agencies. Several sites were
specifically rejected by Plan Commission staff because
they were near areas of minority concentration. App.
106-107, 192-194. Skilken’s acquisition of the Heather-
_
12 For example, in the Stateline area, the average price of homes
was only $21,500. App. 681. In the Heatherdowns community, the
average price was $30,500. App. 699. Ragan Woods, whose prop-
erty owners sought to intervene, is a part of the Heatherdowns
community. Although the price of houses in Ravan Woods is con-
siderably higher, the fact ramains that the cost of Skilken homes
was entirely consistent with the cost of homes generally in the
community of which they were to be a part.
14
downs, Stateline, and Holland-Sylvania sites were a
direct result of recommendations by members of the
Plan Commission staff. App. 194, Pl. Ex. 185, pp. 85-
86. The three sites are located in different areas of
the City and all are in areas that are nearly all-white.
At trial, the Plan Commission’s Deputy Director testi-
fied that these sites ‘‘were the best sites we had seen
so far in the Turnkey project process.”” App. 110.
Specifically, this official testified that they were good
sites because they were in areas which contained no
concentration of minorities or low income housing and
the number of units on each sites was sufficiently small
so that they would not in any way impact the area.
App. 110-111.
Before construction could begin on the three sites,
Skilken was required to secure preliminary platting
approval * from the Plan Commission and approval
for a zoning change from the City Council for the
Heatherdowns site.“* Plan Commission staff members
testified that the staff found no technical problems
whatsoever with any of the three sites and recom-
mended that the Plan Commission approve all three
sites. App. 132-133, 201-204, 683-686, 689-691, 701-
702(a); Pl. Ex. 26.
Specifically, the Plan Commission staff found no
school, traffic, sewer, drainage, or fill problems con-
nected with the three sites. App. 132-133, 201, 204.
Uncontroverted evidence introduced at trial showed
that when the Plan Commission staff recommends ap-
** See note 3, supra.
* Petitions for a change of zone are first filed with the Plan
Commission which makes a recommendation to the City Council.
After receipt of the recommendation, the City Council conducts
a hearing and acts on the application.
15
proval of preliminary platting applications, the Plan
Commission ‘‘almost never’? overrules, and ‘“‘over-
whelmingly’’ follows the recommendation. App. 133.
Uncontroverted evidence also showed that when the
Plan Commission staff recommends approval of an
application for a residential zoning change, the Plan
Commission overwhelmingly follows their recommen-
dation, and that it is considered ‘‘unusual”’ when they
do not. App. 134. At trial the then Plan Commission
Chairman, a member of the Commission for 37 years,
could not recall any specific instances in which the
Plan Commission had not followed the staff recom-
mendation regarding the approval of a platting or re-
zoning application. A. 10a. The current Chairman,
who has been a member of the Plan Commission since
1963, similarly could not recall any instances when ap-
proval of platting or rezoning had been denied by the
Plan Commission after the staff had recommended
approval. App. 440-444.
(a) DISAPPROVAL OF THE PRELIMINARY PLATTING OF
THE STATELINE Roap SITE.
On January 24, 1974, the Plan Commission con-
ducted a hearing on Skilken’s application for prelin-
inary platting of the Stateline Road site. At this hear-
ing, white residents living near the site expressed op-
position to the platting on grounds that there was fill
material on the site and that it did not drain properly.
Additional soil boring tests conducted by Skilken’s
engineers and an independent investigation by the
Plan Commission staff showed that there were no
drainage or fill problems. App. 40-41, 116-118, 132-133,
223-224, 303-307, 688. The Plan Commission held three
separate hearings on Skilken’s preliminary platting
application for the Stateline Road site. At the conclu-
16
sion of the three hearings, on March 7, 1974, the Plan
Commission disapproved Skilken’s preliminary plat-
ting application on the ground that ‘‘it was not con-
sidered to be in the best interests of the residents in
the area.’’ App. 687.
A Plan Commission staff member, employed by the
Plan Commission for more than 12 years, testified
that he did not know of any instance in which a plat
had been disapproved for that reason. App. 224. The
then Plan Commission Chairman and its current
Chairman testified that in making their decision they
relied upon the opinion of a white resident of the area
rather than the professional opinions of the licensed
engineers and the Plan Commission staff. App. 255,
287, 481-482. The district court found: ‘‘No compe-
tent fact finder could properly have given any ere-
dence to the exaggerated and distorted memories of
so unabashedly interested a witness . . . against the
scientific evidence which contradicted it.’’ A. 15a.
(b) DisarPROVAL OF THE PRELIMINARY PLATTING OF
THE HOLLAND-SYLVANIA SITE.
On January 24, 1974, the Plan Commission held a
hearing on Skilken’s request for approval of the pre-
liminary platting of the Holland-Sylvania site and
unanimously approved Skilken’s application. App.
908-512. Later, white residents of the area surrounding
this site requested the Plan Commission to reconsider
its action and rescind its prior approval of the plat-
ting. On March 21, 1974, the Plan Commission re-
scinded its prior approval on the basis that it had not
known that public housing was to be built on the site.
App. 646-652, 695. When asked at the Plan Commission
meeting whether he had ever rescinded such a matter
17
as this, the then Chairman of the Plan Commission
responded: ‘‘Never.’’ App. 652. A longstanding Plan
Commission staff member testified at trial that he knew
of no instance in the past in which the Plan Commis-
sion had rescinded a previous approval. App. 205.
(c) DISAPPROVAL OF THE PRELIMINARY PLATTING AND
REZONING OF THE HEATHERDOWNS BOULEVARD SITE.
The Plan Commission held two hearings regarding
the Heatherdowns B>ulevard site, the first to consider
Skilken’s application for a zoning change from R-A
(20,000 square feet) to R-2 (6,000 square feet), and
the second to consider both the rezoning and platting
applications. At the second hearing, Skilken’s counsel
suggested that Skilken was willing to amend the re-
zoning application from R-2 (6,000 square feet) to
R-1 (9,000 square feet). App. 130-132. Skilken later
acquired additional land and amended his rezoning ap-
plication to R-1. App. 225, 705. At both hearings, white
residents of the surrounding area opposed approval of
Skilken’s applications in that public housing was to
be constructed on the site. At the second meeting, the
Plan Commission passed a resolution recommending
that Skilken’s rezoning request be disapproved be-
cause it was inconsistent with the neighborhood. The
Plan Commission also disapproved Skilken’s applica-
tion for preliminary platting. App. 589-617.
On March 19, 1974, the Toledo City Council held a
hearing on Skilken’s rezoning request. White residents
of the area expressed opposition to the rezoning on
the basis that public housing would be consti ucted on
the site. The City Council denied the request and for-
malized that action on March 26, 1974. App. 653.
18
The Heatherdowns site and the surrounding area
were annexed to the City of Toledo in the middle
1960’s and were zoned R-A (20,000 square feet), the
highest residential land use in the City. The Plan
Commission’s Deputy Director testified that the area
“‘began to experience a transition from rural uses to
suburban uses’’ and is presently under ‘‘heavy devel-
opment pressure.’’ App. 121, 127, 195-196. As the dis-
trict court found, the site is in what has been charac-
terized as a “‘holding status’? with rezoning contem-
plated in the near future. A. lla; see App. 121, 167,
195, 224-225. As the district court also found: ‘‘The
record is . . . replete with rezoning changes in the
Heatherdowns area from R-A to various other resi-
dential and commercial uses.’’ A. lla. Further, the
record shows that developers who have requested these
changes have had no difficulty in having them ap-
proved. App. 119-131; Pl. Ex. 85-103, 796, 797. In fact,
the area immediately adjoining the Skilken site is cur-
rently zoned R-3 (multi-family/2,400 square feet)
App. 702(a). The Ragan Woods subdivision, itself, is
currently zoned R-B (12,000 square feet). Id.
Plan Commission staff members testified at trial
that the staff expected the Heatherdowns Boulevard
site eventually to be rezoned to R-3 (multi-family/
2,400 square feet), App. 125-127, 225-226, and that the
staff had recommended a rezoning to R-2 in order to
protect the single-family character of the area closely
surrounding the site. App. 126-127, 701-702(a). There
is also uncontroverted testimony by a Plan Commis-
sion staff member that the Plan Commission’s rejec-
tion of Skilken’s request to rezone the Heatherdowns
Boulevard site to either R-1 or R-2 was totally incon-
sistent with its past history, customs, and practices.
App. 226.
19
The current Plan Commission Chairman, then a
member, testified that he was opposed to placing pub-
lie housing in the Heatherdowns area because there
was hostility by neighbors in that area. App. 492-494.
When asked whether or not the hostility was racial,
he responded: ‘‘Certainly, a part of it.’’ App. 494.
7. Summary of Facts
The facts that form the basis of this Petition can be
summarized as follows:
1. The City of Toledo is racially segregated as a
result, in large part, of discriminatory practices.
2. Governmental agencies, including the defend-
ant City of Toledo, have been participants in establish-
ing and perpetuating residential segregation in the
City, mainly through the location of low rent public
housing.
3. TL eis a critical need for low income housing
in Toledo, particularly for minorities.
4. Approximately 70 percent of the people who
live in public housing, and those who are on the wait-
ing list for family public housing (including Turnkey
ITI) are minorities.
5. There is a severe shortage of land, outside
areas of minority concentration, for the development
of public housing in Toledo.
6. The three sites for the Skilken Turnkey IIT
units are located outside areas of minority concentra-
tion and were acquired in response to TMHA and
Plan Commission policies requiring that such sites be
located outside areas of such minority concentration.
20
7. There has been no previous instance in which
the Plan Commission disapproved requests for plat-
tings for residential developments when the technical
requirements were met. The plattings submitted by
Skilken met all the technical requirements.
8. In the entire history of the Toledo City Plan
Commission, the Skilken proposal for the Holland-
Sylvania site is the only occasion on which the Plan
Commission has rescinded platting approval.
9. City of Toledo officials in the past have rejected
low income housing in white areas in response to pro-
tests by white residents of such areas. In the instant
case, white area residents vigorously opposed platting
of the three sites and rezoning of the Heatherdowns
site after they learned that public housing was to be
provided there.
10. There have been many requests for rezoning
in the Heatherdowns area from R-A (a “holding
zone’’) to various other residential and commercial
uses. Until the Skilken proposal, these requests have
been granted with no difficulty.
On the basis of these facts, the district court ruled
for the plaintiffs. The trial court held that the plain-
tiffs had met their burden of establishing a prima facie
case of racial discrimination. The court then examined
the defendants’ justifications for their conduct to de-
termine whether these justifications demonstrated that
the discrimination was necessary to promote a com-
pelling governmental interest. The City offered the
following justifications: that TMHA’s past record was
poor; that the Skilken proposal for the Heatherdowns
site was not beneficial for the neighborhood; that the
Stateline site proposal was properly rejected because
21
the land was subject to flooding; and that the three
sites were properly rejected because they involved
clustered housing developments. The district court re-
jected these justifications as ‘‘devoid of the requisite
‘compelling’ nature.’’ A. 16a. On October 8, 1974, the
district court issued its Order requiring the defend-
ants, inter alia, to submit a comprehensive plan of
affirmative action to eliminate discriminatgry barriers
in the total housing supply.
On appeal by the defendants and intervenor prop-
erty owners in the Ragan Woods Addition, the Court
of Appeals reversed. First, the Court of Appeals ruled
that the Motion for Intervention by the property
owners in the Ragan Woods Addition should have been
granted.”* Second, the Court held that the trial court’s
ruling that the denial of the rezoning application for
the Heatherdowns Boulevard site was racially discrim-
inatory was incorrect. ‘The Court of Appeals said:
We live in a free society. The time has not yet
arrived for the courts to strike down state zoning
laws which are neutral on their face and valid
when passed, in order to permit the construction
at public expense of large numbers of low cost
public housing units in a neighborhood where
they do not belong, and where the property own-
ers, relying on the zoning laws, have spent large
sums of money to build fine homes for the enjoy-
ment of their families. A. 49a-50a.
Third, the Appellate Court ruled that in holding that
the defendants’ denial of the preliminary platting ap-
plication for the Holland-Sylvania and Stateline Road
sites was racially discriminatory, the district court did
not give adequate consideration to the nonracial rea-
15 Petitioners do not challenge that ruling in this Petition.
22
sons stated by the defendants, and did not consider the
rights of the property owners in the area who opposed
the platting. Accordingly, the Court of Appeals re-
manded the case for determination of these’ rights.
Fourth, the Court of Appeals held that the district
court, in ordering affirmative relief, exceeded its au-
thority.
REASONS FOR GRANTING THE WRIT
The petitioners contend the Sixth Circuit, in revers-
ing the decision of the district court, applied a stand-
ard of liability that is in conflict with the decisions of
other courts of appeals. Petitioners also contend that
consideration of the Skilken case in conjunction with
the factually analogous Seventh Circuit decision in
Arlington Heights, infra (with which Skilken is in di-
rect conflict) will enable this Court to evaluate the im-
portant legal issues common to both cases from a broad
perspective. With respect to the ruling of the Court
of Appeals denying the authority of the district court
to enter a remedial order, the petitioners assert that
the holding is inconsistent with the prior decisions of
this Court. The Petition for a Writ of Certiorari
should be granted to resolve the sharp conflicts among
the circuits and between the Sixth Circuit and this
Court.
It should be observed that this case implicates the
rights of minorities extending beyond equal housing
opportunity. The questions presented for review here
are inextricably linked to school segregation. Among
other results, discriminatory housing practices ‘have
deleteriously produced racial separation in the
schools. ...”’ 6 Presidential Documents 666, 667 (Pres-
ident’s Message to Congress, May 21, 1970).
23
The truth of that statement is demonstrated by the
facts of this case. The Toledo school system, like many
others, assigns children to school on the basis of the
‘‘neighborhood school concept.’’ A. 6a n.9. In view of
the residential segregation that exists in the City, the
inevitable result is segregated schools. 'The Skilken
proposals not only would have afforded housing op-
portunities for minorities outside areas of minority
concentration, but also would have contributed to de-
segregating the City’s schools. Thus, the effect of the
defendants’ conduct blocking construction of the Skil-
ken houses is to leave the burden of desegregation en-
tirely on the school system.
But there are limits on the capacity of school sys-
tems, alone, to overcome such segregation. As this
Court has stressed: ‘‘One vehicle can carry only a
limited amount of baggage.’’ Swann v. Charlotte-
Mecklenburg Board of Education, 402 U.S. 1, 22
(1971). This case provides the opportunity to explore
ways ‘‘of shifting to other public institutions a greater
share of the task of undoing the effects of racial isola-
tion.’’ 6 Presidential Documents 424, 436 (President’s
Statement on Equal Opportunity in Education, March
24, 1970).
I. Conflict Among the Circuits
The decision of the Court of Appeals in this case
conflicts with the decision of the Court of Appeals for
the Seventh Circuit in Metropolitan Housing Develop-
ment Corp. v. Village of Arlington Heights, 517 F.2d
409, cert. granted 44 U.S.L.W. 3358 (U.S. Dee. 15,
1975). In the Arlington Heights case, which this Court
agreed to hear on December 15, 1975, the plaintiffs
sought to construct federally subsidized housing gor
24
low and moderate income minorities in the defendant
municipality, a virtually all-white suburb of Chicago.
Because the land needed to be rezoned before the
dwellings could be built, the plaintiffs applied to the
Village for a change in the zoning designation of the
parcel. The municipality denied the rezoning to main-
tain the “integrity of the zoning plan’”’ and to protect
‘neighboring property values.’’ Jd. at 415.
The Court of Appeals, reversing the district court,
held that the refusal of the Village to rezone the land
constituted racial discrimination. It premised that rul-
ing on four key facts: (1) that minorities are dispro-
portionately overrepresented in the class of persons
eligible to reside in the proposed housing; (2) that a
high degree of racial residential segregation exists in
the Chicago metropolitan area, caused, at least in part,
by discriminatory practices; (3) that Arlington
Heights is a virtually all-white suburb of Chicago; and
(4) that the refusal to rezone would perpetuate the
residential segregation in Arlington Heights and the
Chicago area.
After concluding that these facts established hous-
ing discrimination, the Court of Appeals held that,
unless the Village could demonstrate a ‘‘compelling
public interest’’ for denying the rezoning, it would be
liable under federal law. The defendant offered two
justifications for its conduct: (1) to maintain the in-
tegrity of its zoning ordinance; and (2) to protect ad-
joining property values. The Court of Appeals re-
jected hoth grounds; neither, it held, constituted a
compelling interest.
The present appeal is nearly identical to the Arling-
ton Heights case. First, in both suits, minorities are
overrepresented in the class eligible for the proposed
25
units. In Arlington Heights, 40 percent of the poten-
tial occupants are black. In this case, fully 70 percent
of the applicants are minorities. Second, in both ac-
tions, the relevant geographic areas show a high de-
gree of racial residential segregation. In Arlington
Heights, the Court found minorities concentrated in
certain parts of the metropolitan area and almost to-
tally excluded from the defendant municipality. Here,
95 percent of the minorities in Toledo reside in the so-
called ‘‘Southwest Corridor’? or ‘‘Black Corridor.”’
The immediate areas surrounding the three proposed
project sites are almost exclusively all-white.
Third, in Arlington Heights, as in this appeal, the
refusal to rezone the property for the construction of
the proposed housing perpetuated the patterns of resi-
dential segregation. Fourth, in both cases, the munici-
palities sought, inter alia, to justify their conduct in
order to maintain the integrity of the zoning ordinance
and to preserve neighboring property values.
Although the cases are factually similar, the two
courts of appeals drew opposite legal conclusions. In
Arlington Heights, the Court held that those facts
proved racial discrimination and that the defendants
had to justify their conduct by a compelling govern-
mental interest. In this case, the Appellate Court held
that such facts do not constitute racial discrimination,
and that the municipal defendants need only show a
rational basis for their conduct. By the same token, in
Arlington Heights, the Seventh Circuit held that the
asserted justifications did not satisfy the defendants’
burden of showing a compelling interest. In Skidken,
by contrast, the Sixth Circuit held that even if the
26
compelling interest test applied, similar justifications
asserted by the defendants satisfied it.** A. 45a-46a n.4.
In addition to the conflict with Arlington Heights,
the judgment below is inconsistent with at least four
other decisions of courts of appeals. In United States
v. City of Black Jack, 508 F.2d 1179 (8th Cir. 1974),
cert. denied, 422 U.S. 1042 (1975), the plaintiffs sought
to enjoin a newly enacted zoning ordinance which ef-
fectively precluded the construction of housing which
lower income minorities could afford. The Court of
Appeals held that the plaintiff had established a prima
facie case of racial discrimination by showing: (1)
that blacks were disproportionately overrepresented
among the intended beneficiaries of the project; (2)
that patterns of racial residential segregation, caused,
at least in part, by discrimination, pervaded the St.
Louis County area, in which Black Jack is located;
and (3) that the passage of the municipal ordinance,
by foreclosing 85 percent of the black population in
the St. Louis area from residing in Black Jack, would
perpetuate residential segregation.
The essential facts which the Court in Black Jack
held were sufficient to establish a prima facie case of
racial discrimination are equally present here. So too
are the asserted municipal defenses which the Eighth
Circuit rejected.
Two other courts of appeals have found that facts,
nearly identical to those proved in this case, established
racial discrimination, thus shifting the burden to the
municipal defendants to justify their discriminatory
** Even the defendants in Shkilken conceded, in their brief in the
Court of Appeals, that if the ‘‘compelling state interest’’ test were
applied to their conduct, they could not satisfy that b
fendants’ Brief at 38. . y that burden. De
27
conduct by a compelling state interest. In Kennedy
Park Homes Ass’n v. City of Lackawanna, 436 F.2d
108 (2d Cir. 1970), cert. denied, 401 U.S. 1010 (1971),
the Second Circuit affirmed a district court judgment
requiring local officials to take all necessary steps to
permit the construction of subsidized housing for
lower income minorities in a white area of the City of
Lackawanna. Through various actions and inactions,
municipal officials had blocked the construction of
housing units for lower income minorities. The Court
of Appeals held that such conduct established racial
discrimination and that the defendants failed to jus-
tify it by a compelling state interest.”
The Fifth Circuit applied the same standard of
proving housing discrimination by local officials in
another case involving facts indistinguishable from
those in the instant case. Crow v. Brown, 457 F.2d 788
(5th Cir. 1972) (per curiam), affirming 332 F. Supp.
11In Citizens Committee for Faraday Wood v. Lindsay, 507
F.2d 1065 (2d Cir. 1974), cert. denied, 421 U.S. 948 (1975), the
Second Circuit, in declining to hold racially discriminatory mu-
nicipal conduct blocking construction of a predominantly mid-
dle income housing project, reaffirmed the principles it had ex-
pressed in Lackawanna, and stressed the need for careful scrutiny
of governmental actions blocking construction of low income
housing.
[T]he whole rationale for carefully scrutinizing governmental
actions that adversely affect traditional public housing pro)j-
ects is that these projects are designed for low-income persons
and courts are not blind to the fact that racial minorities are
disproportionately represented in the lower-income levels of
our society. 507 F.2d at 1068-69.
That is precisely the context in which the instant case arises. In
Skilken, not only was the housing designed for low income per-
sons, but, as the undisputed evidence showed, seven of every ten
applicants for the housing were, in fact, racial minorities. The
Second Circuit, in its opinion in Faraday Wood, cited the district
court decision in Skilken approvingly.
28
382 (N.D. Ga. 1971). In Crow, private builders, in con-
junction with the Atlanta Housing Authority, sought
to construct ‘‘Turnkey’’ public housing units (the
same type of dwellings involved in this suit) in white
areas of Fulton County, in which Atlanta is located.
The Court ruled that the refusal of county officials to
grant building permits for these projects constituted
racial discrimination. It based that decision on the
disproportionate number of minorities eligible for
such housing, the present concentration of minorities
and public housing in limited area of Fulton County,
and the impact denying the building permits would
have on perpetuating residential segregation.
In another Fifth Circuit decision, United Farm-
workers of Florida Housing Project, Inc. v. City of
Delray Beach, 493 F.2d 799 (5th Cir. 1974), the Court
of Appeals held that the defendant municipality had
engaged in racial discrimination in refusing to permit
sponsors of a low income housing project for minority
farmworkers to tie into existing water and sewer fa-
cilities when it had granted such permits for white
developments. The analogy to Skilken is apparent.
Tlere, as the record shows, the Toledo City Plan Com-
mission had uniformly followed the recommendations
of its staff on the issuance of preliminary platting, ex-
cept in this case, and had never rescinded a previously
approved platting, except in this case. The record also
shows that applications for rezoning in the Heather-
downs area were granted with no difficulty, except in
the case of the Skilken application.
The Delray Beach Court also evaluated the defend-
ants’ conduct in its ‘‘historieal context” and “‘ultimate
effect’’ and found, as in Skilken, that historically low
income housing in the City had been located almost
entirely in a racially segregated area. Also as in Skil-
29
‘ken, the City had previously sought successfully to
block plaintiffs’ efforts to construct subsidized housing
outside area of minority concentration. The conclu-
sion of the Fifth Circuit is equally applicable to the
Skilken case:
The ultimate effect of tie City’s past and present
conduct is threefold: first, the confinement of low
income housing construction to the segregated area
of the City; second, a further reinforcement of
segregation in the City because minority citizens
in disproportionate numbers live in low income
housing; and third, a frustration of efforts to con-
struct housing which [minority] farmworkers can
afford. 493 F.2d at 810.
These six ecases—Arlington Heights, Black Jack,
Lackawanna, Crow, Delray Beach, and Skilken—all
have a “‘common nucleus of operative fact.’’ United
Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966). In
each instance, a housing sponsor sought to build dwell-
ings for lower income minorities in white neighbor-
hoods. In each ease, blacks and other minorities were
disproportionately overrepresented in the class of per-
sons eligible for the housing. In each situation, local
officials prevented the construction of the housing
through various devices: e.g., refusal to rezone land,
approve platting, or grant a building pc mit. In each
instance, the action of the governmental bodies per-
petuated a high degree of racial residential segrega-
tion existing in the city and metropolitan area in
which the housing was to be located.
This ‘‘common nucleus of operative fact’’ resulted
in consistent rulings of law by four courts of appeals
(the Second, Fifth, Seventh, and Eighth Circuits). In
essence, they held that such facts establish a prima
30
facie case of racial discrimination under Title VIII or
other federal civil rights laws. Such proof, they fur-
ther held, shifts the burden to the municipal officials
to demonstrate that the conduct under scrutiny is jus-
tified by a ‘‘compelling governmental interest.’’ * Un-
der that test, the courts of appeals in Arlington
Heights, Black Jack, Lackawanna, Crow, and Delray
Beach rejected a number of the same defenses offered
by the City of Toledo and the Plan Commission in this
ease, but accepted by the Sixth Circuit. The ruling
of the Court of Appeals in Skilken on the standard of
liability and the defendants’ burden ignores these
contrary decisions of other courts of appeals. Indeed,
the Sixth Circuit failed even to mention any of them
in its opinion. The conflict among the circuits should
be resolved by this Court.
II. Relation to Arlington Heights
The Sixth Cireuit decision in Skilken was filed on
December 10, 1975. Five days later, on December 15,
1975, this Court granted the Petition for a Writ of Cer-
tiorari in Metropolitan Housing Development Corp. v.
Village of Arlington Heights, supra. As noted earlier,
the contrary Skilken and Arlington Heights decisions
involve a ‘‘common nucleus of operative fact’’ and
identical legal issues. Four earlier courts of appeals de-
*® Accord: Dailey v. City of Lawton, 425 F.2d 1037 (10th Cir.
1970). See also SASSO v. Union City, 424 F.2d 291 (9th Cir.
1970). But ef. Acevedo v. Nassau County, 500 F.2d 1078 (2d Cir.
1974) ; Mahaley v. Cuyahoga Metropolitan Housing Authority, 500
F.2d 1087 (6th Cir. 1974) cert. denied, 419 U.S. 1108 (1975);
Ybarra v. Town of Los Altos Hills, 503 F.2d 250 (9th Cir. 1974).
None of the decisions of this Court cited by the Sixth Circuit as
rejecting the compelling interest test, A. 46a-47a, involved racial
discrimination.
31
cisions that support the Arlington Heights ruling—
Black Jack, Lackawanna, Crow, and Delray Beach—
also involved similar facts and identical questions of
law. And several additional court of appeals decisions,
reaching differing conclusions, have dealt with similar
legal issues arising out of somewhat different factual
contexts.” The substantial number of court of appeals
decisions involving these issues—all within the last six
years—demonstrates the key role that municipal exer-
cise of land use authority plays in facilitating or pre-
venting achievement of fair housing goals. See Na-
tional Committee Against Discrimination in Housing-
Urban Land Institute, Fair Housing and Exclusionary
Land Use (1974).
This Court, after declining to review several earlier
court of appeals decisions,” has determined to resolve
the important legal issues presented by these cases.
The decision of this Court is likely to have a decisive
bearing on the effectiveness of future efforts to enable
” See Acevedo v. Nassau County, 500 F.2d 1078 (2d Cir. 1974) ;
Citizens Committee for Faraday Wood v. Lindsay, 507 F.2d 1065
(2d Cir. 1974), cert. denied, 421 U.S. 948 (1975); Mahaley v.
Cuyahoga Metropolitan Housing Authority, 500 F.2d 1087 (6th
Cir. 1974), cert. denied, 419 U.S. 1108 (1975); Ybarra v. Town
of Los Altos Hills, 503 F.2d 250 (9th Cir. 1974) ; SASSO v. Union
City, 424 F.2d 291 (9th Cir. 1970) ; and Dailey v. City of Lawton,
425 F.2d 1037 (10th Cir. 1970).
2° This Court has previously denied petitions for certiorari in
the following other cases involving similar legal issues: United
States v. City of Black Jack, 508 F.2d 1179 (8th Cir. 1974), cert.
denied, 422 U.S. 1042 (1975); Mahaley v. Cuyahoga Metropolitan
Housing Authority, 500 F.2d 1087 (6th Cir. 1974), cert. denied,
419 U.S. 1108 (1975); Citizens Committee for Faraday Wood v.
Lindsay, 507 F.2d 1065 (2d Cir. 1974), cert. denied, 421 U.S. 948
(1975); Kennedy Park Homes Ass’n vy. City of Lackawanna, 436
F.2d 108 (2d Cir. 1970), cert. denied, 401 U.S. 1010 (1971).
32
minorities to secure housing outside areas of existing
minority concentration. Petitioners urge that the over-
riding importance of the issues makes it imperative
that this Court consider them from the broadest pos-
sible perspective. Petitioners submit that, granting
this Petition and considering the Skilken case in con-
junction with Arlington Heights, will enable the Court
to gain that perspective.
Skilken and Arlington Heights are complementary
cases. To a large extent, they are mirror images of
each other. First, the direct conflict between the deci-
sions of the Sixth and Seventh Circuits has already
been explicated in this Petition. The posture in which
the two cases are presented to this Court serves to
underscore the conflict and sharpen the opposing
points of view reflected by the two decisions. In Arling-
ton Heights, the district court found that racial dis-
crimination in the exclusion of lower income housing
for minorities had not been shown. The Seventh Cir-
cuit accepted the basic facts found by the district court,
but nonetheless held that racially discriminatory ex-
clusion had been established. In Skilken, by contrast,
the district court, on similar facts, held that the de-
fendants’ conduct was racially discriminatory. The
Court of Appeals, however, held that these facts were
insufficient to prove a claim of racial discrimination.
In short, the conflicting decisions of the Sixth and
Seventh Circuits each reversed district court rulings
which, on the basis of similar facts, also had reached
contrary results. Thus, the conflicting points of view
of the two circuits are reflected, not only by the opin-
ions of the respective courts of appeals, but also by the
contrary opinions of the two district courts and by an
examination of the treatment the respective courts of
33
appeals accorded to the lower court opinions. Grant-
ing the Petition will enable this Court to evaluate the
issues from a broad base of differing factual and legal
analysis.
Second, the legal basis for the Seventh Circuit deci-
sion in Arlington Heights was the Equal Protection
Clause of the Fourteenth Amendment. In Skilken,
plaintiffs’ claim rests principally on a statute, Title
VIII of the Civil Rights Act of 1968, the Federal Fair
Housing Act. Granting the Petition in the instant case,
and conside aig it with Arlington Heights, will give
this Court the opportunity of exploring and defining
the standards of liability in cases of alleged housing
discrimination involving the respective constitutional
and statutory claims.
Third, in Skilken, the minorities for whom the lower
income housing was intended already resided in the
municipality, although in racially segregated neigh-
borhoods. Defendants’ conduct maintained their con-
finement to such neighborhoods. In Arlington Heights,
the lower income minorities were nonresidents seeking
to reside in Arlington Heights. The effect of the con-
duct of the all-white Village was to maintain their al-
most total exclusion. By granting the Petition in the
instant case, this Court will have the opportunity to
consider the possible legal implications of racial dis-
crimination claims by resident, as opposed to non-resi-
dent, minorities, and the possible legal distinctions be-
tween municipal conduct that results in maintaining
total exclusion of minorities and similar conduct that
maintains confinement of resident minorities to ghetto
areas of the community.
Finally, considering this case together with Arling-
ton Heights will enable this Court to examine the ap-
34
plicability of an important legal principle expressed
in an earlier Supreme Court decision. Gaston County
v. United States, 395 U.S. 285 (1969). Gaston County
was a voting rights case in which this Court refused
to permit a county to reinstate a literacy test, on
grounds that blacks had received inferior educations
under the segregated school system and would, there-
fore, be adversely affected. This Court held that one
governmental body could not engage in conduct that
is otherwise racially neutral if the effect perpetuates
racial discrimination engaged in by others.
In Skilken and Arlington Heights the defendant
municipalities both are racially segregated. In each
ease, the residential segregation is not fortuitous, but
the result, in large part, of past practices of housing
discrimination, engaged in by various private and pub-
lie parties. Also in each ease, the challenged conduct,
while neutral on its face, results in a perpetuation of
the residential segregation. Consideration of Skilken
and Ar’ngton Heights simultaneously will enable this
Court to examine and determine the application of
the principles of Gaston County to fair housing cases.
Specifically, the Court will be in a position to deter-
mine whether the principles of Gaston County apply
to facially neutral conduct that perpetuates past hous-
ing discrimination, and, if so, the application of those
principles to discrimination emanating from a variety
of private parties and governmental officials.
In short, Petitioners submit that the complementary
relation of Skilken to Arlington Heights argues for
granting the Petition in the instant case so that the
Court, through examination of both, will be in a posi-
tion to evaluate fully and resolve the important com-
mon issues that the two cases present.
35
IIL Inconsistency With Prior Decisions of This Court
This Petition also presents for review the question
whether a federal district court, after a finding of un-
lawful housing discrimination by municipal officials,
may order those officials to develop a remedial plan to
correct the effects of such discrimination. The Court
of Appeals held that the district court had no author-
ity to enter an affirmative action decree in which the
defendants would be required to develop a remedial
plan to correct the effects of their past misconduct.
While recognizing that such orders are common to
*“*school desegregation cases,’’ A. 32a, the Appellate
Court ruled they have no place in housing discrimina-
tion cases involving public officials.
The holding of the Court of Appeals is inconsistent
with the prior decisions of this Court. For at least ten
years, this Court has approved broad, remedial decrees
in racial discrimination cases. When Louisiana officials
objected to a decree requiring affirmative steps to cor-
rect the effects of their voting discrimination, the Su-
preme Court stated, in oft-quoted language:
[The district court] has not merely the power but
the duty to render a decree which will so far as
possible eliminate the discriminatory effects of
the past as well as bar like discrimination in the
future. Louisiana v. United States, 380 U.S. 145,
154 (1965).
In that ease, the Court approved a mandatory injune-
tion requiring officials to undertake a number of affirm-
ative remedial measures.
After its initial application in the voting field, this
Court extended the concept of affirmative decrees to
36
other areas of racial discrimination.” In Green Vv.
County School Board, 391 U.S. 480 (1968), this Court
rejected the contention of the defendant school board
that only a general, prohibitory injunction is author-
ized in school desegregation actions. In holding that
it is not sufficient for school officials merely to stop
discriminating, the Court stated that school boards
have ‘‘the affirmative duty’’ to eliminate the last ves-
tiges of discrimination, ‘‘root and branch.”’ Jd. at 438.
This Court reaffirmed that ruling in Swann v. Char-
lotte-Mecklenburg Board of Education, 402 U.S. 1
(1971).
In disapproving the district court’s application of
the remedial order doctrine to this housing case, the
Court of Appeals ignored the contrary decisions of
this Court.” Federal courts of appeals, following the
prior decisions of the Supreme Court, have uniformly
approved remedial orders which affirmatively seek to
remedy housing discrimination. E.g., Crow v. Brown,
supra; MHDC vy. Arlington Heights, supra; Kennedy
Park Homes Ass’n vy. City of Lackawanna, supra;
Gautreaux Vv. Chicago Housing Authority, 503 F.2d
** This Court, to be sure, has not limited the mandatory injune-
tion with affirmative steps to civil rights cases. It has authorized
broad remedial orders in a variety of cireumstances. Sce Mitchell
v. Robert DeMario Jewelry, Inc., 361 U.S. 288 (1960) (fair labor
standards) ; Porter v. Warner Holding Co., 328 U.S. 395 (1946)
(price control); United States v. Crescent Amusement Co., 323
U.S. 173, 189-190 (1944) (anti-trust).
*2 Indeed, in an employment discrimination case, the Sixth Cir-
cuit itself held that the findings ‘‘require vacation of pro forma
judgment entered by the District Judge and remand for considera-
tion of appropriate affirmative relief.’’ United States v. IBEW,
Local 38, 428 F.2d 144, 151 (6th Cir.), cert. denied, 400 U.S. 943
(1970).
37
930 (7th Cir. 1974), cert. granted sub nom. Hills v.
Gautreaux, 419 U.S. 962 (1975).”
Finally, it should be noted that the precise contours
of a remedial order are not at issue. Because of the
appeal, the district court has not yet entered a specific
remedial order. Thus, the only issue before this Court
now is the authority of a district court to enter any
remedial order involving an affirmative action plan to
correct the discriminatory effects of the past.
CONCLUSION
Because the decision of the Court of Appeals con-
flicts in important respects with the judgments of at
least four other courts of appeals and because it is
inconsistent with the prior decisions of this Court, the
Petition for Writ of Certiorari should be granted and
the case brought here for view, to be heard with
*°In Gautreauz, this Court is reviewing the equity authority of
federal courts to order a federal defendant, found to have prac-
ticed housing discrimination, to develop a remedial order which
extends beyond the geographical area of the proved violation. That
part of the remedial order that is applicable to the City of Chi-
cago, where the violation occurred, is not at issue. In Skilken, the
remedial plan would apply only to the City of Toledo, the geo-
graphical area where the violation occurred.
38
Metropolitan Housing Development Corp. v. Village
of Arlington Heights, supra.
Respectfully submitted,
TueoporeE M. Rowen
Spengler, Nathanson,
Heyman, McCarthy and
Durfee
935 National Bank Building
Toledo, Ohio 43604
Wituiam M, CoNnNELLY
825 National Bank Building
Toledo, Ohio 43604
January 1s 1976
Martin E. SLOANE
Jay MULKEEN
Artruur D. Wor
National Committee Against
Discrimination in Housing,
Ine.
1425 H Street, N. W.
Washington, D. C. 20005
R. Micuar. Frank
Josepn R. TaPreski
Advocates for Basic Legal
Equality, Ine.
740 Spitzer Building
Toledo, Ohio 43604
Altorneys for
Plaintiff[s-Appellees
APPENDIX
la
APPENDIX
In tHe Unirep States District Court
FoR THE NorTHERN District or OxnI0
WeEsTERN Division
No. C 74-202
MEMORANDUM
JosepH SKILLKEN AND Company, ET AL, Plaintiff's,
vs.
City or Toepo, er au., Defendants.
Youna, J:
(Firep Avcust 28, 1974)
I. IntrRopvuction
This suit is instituted pursuant to several enactments
within Title 42 of the United States Code. The specific
sections are 1401, et seq., 1441, et seq., 1981, 1982, 1983,
2000d, and 3601, et seq. The action is also based upon the
Thirteenth and Fourteenth Amendments to the United
States Constitution. The jurisdiction of this Court is
founded upon 28 U.S.C. § 1331 and 1343; 42 U.S.C. § 3612
and 3617. The plaintiffs are: Joseph Skillken Company
(hereinafter Skillken) a corporation engaged in the de-
velopment and construction of residential dwelling units;
Toledo Metropolitan Housing Authority (hereinafter
TMHA); and low income minority persons on behalf of
themselves and all other low-income minority residents
who seek the opportunity to live in decent, safe, and sani-
tary housing in the City of Toledo, outside areas of mi-
nority concentration." There are numerous defendants in
*An initial determination was made at a pretrial conference
conditionally certifying the action as a class action with the class
being tentatively determined as including all low income minority
2a
this lawsuit and they appear as follows: The City of To-
ledo, (hereinafter city), a body corporate and politic, es-
tablished and organized under the laws of the State of
Ohio; Mayor Kessler, duly elected Mayor of the City of
Toledo and as such the Chief Executive Officer of the City
and a member of the Council of the City; Defendants
Cook, Copeland, Daoust, Douglas, Galvin, Nies, Pietry-
kowski and Reddish, the duly elected Council members of
the City of Toledo; Defendant Toledo City Plan Commis-
sion (hereinafter Commission), a commission established
and organized under the laws of the State of Ohio,
§ 3735.27 et seq. Ohio Rev. Code, and the City of Toledo.
The Commission’s duties include the responsibility to
review requests for rezoning and platting and to ensure
their compliance with the Toledo zoning ordinances and
subdivision regulations. Defendants Burke, Cook, Martin,
Schimmel and Stoepler, are members of the Commission
appointed pursuant to the law of the State of Ohio and
the City of Toledo.
II. BacxcGrounp
On August 12, 1968 the City and TMHA entered into a
Cooperation Agreement which provides in paragraph nine:
So long as any contract between the Local Authority
and HUD for loans, (including preliminary loans) or
both in connection with any Project remains in force
and effect, or so long as any bonds issued in con-
nection with any Project or any monies due to HUD
in connection with any Project remain unpaid, this
Agre ment shall not be abrogated, changed, or modi-
persons residing in the Toledo Metropolitan area who, by virtue
of their race and poverty, are unable to secure decent, safe and
sanitary housing in the City of Toledo, at rents or prices which
they can afford without assistance from the Toledo Metropolitan
Housing Authority (T.M.H.A.), and who are eligible for the
Turnkey III Housing program.
3a
fied without the consent of HUD. The privileges and
obligations of the Municipality hereunder shall re-
main in full force and effect with respect to each
roject so long as the beneficial title to such Project
is held by the Local Authority or by any public body
or governmental agency, including HUD, authorized
by law to engage in the development or administra-
tion of low-rent housing projects. If at any time the
beneficial title to, or possession of, any Project is held
by such other public body or governmental agency,
including HUD, the provisions hereof shall inure to
the benefit of any may be enforced by, such body or
governmental agency, including HUD.
Furthermore, the agreement contains no provision which
can be construed to give the City power to approve or
disapprove sites selected for low-rent housing projects
by TMHA. To meet its obligations under the Cooperation
Agreement, TMHA sought and received a reservation of
funds from HUD for the construction of 150 single family
housing units under the Turnkey III Program.’ Accord-
ingly, TMHA advertised for proposals on the 150 units
and Skillken responded to the advertisement by submit-
ting a proposal to TMHA for the construction of 140
units of single family housing. Skillken’s proposal was ac-
cepted by TMHA and a letter designating Skillken as the
Turnkey developer was issued by Carl Barrett, Director
of TMHA. Thereafter discussions between Skillken,
TMHA and the Commission’s staff resulted in choosing
three sites upon which to build the proposed public housing
units. Skillken then entered into option contracts for the
acquisition of real property to build: 50 units of public
housing on the Heatherdowns Boulevard site (hereinafter
Heatherdowns) ; 46 units of public housing on the Holland-
Sylvania Road site (hereinafter Holland-Sylvania); and
34 units of public housing on the Stateline Road-Lewis
Avenue site (hereinafter Stateline). In December 1973,
2 See plaintiff’s exhibit 40.
da
Skillken sought approval from the Commission for the
preliminary platting of the three proposed sites.’ Simul-
taneously, Skillken petitioned the Commission for a rezon-
ing of the Heatherdowns site to permit construction of
single-family low-income housing on lots of smaller di-
mension than the existing zoning provides. This was not
required for the Holland-Sylvania and the Stateline sites
since the existing zoning accommodated Skillken’s propos-
als. The Commission’s staff recommended to the Commis-
sion that it approve Skillken’s requests with regards to the
rezoning of the Heatherdowns site and the preliminary
platting for all three sites. On January 24, 1974 the Com-
mission approved the plat for the Holland-Sylvania site.
Subsequently it was revealed that Skillken’s development
was intended for public housing.‘ This led to a series of
events which culminated in the commencement of this law-
suit. On March 7, 1974 the Commission rejected Skillken’s
petitions for the platting of the Stateline and Heather-
downs sites and also for the rezoning of the Heatherdowns
site. After reviewing the Commission’s action on rezoning
the Heatherdowns site, the Toledo City Council prelimi-
* Technically, the laws make no provisions for preliminary
platting approved by the Commission. However, the development
of a legal plat is a very complicated and expensive business. A
practice has been established by the Commission under which a
developer could secure approval for a preliminary plat before
going to the expense of preparing a complete plat. Whatever con-
ditions the commission required in order to approve the prelimi-
nary plat could then be met in the final plat, and the approval
of that plat would be merely a formal matter.
*The testimony of Mr. Suchan, Deputy Director of the Toledo
Lucas County Plan Commission, and Mr. Willard Jaequot, Prin-
cipal Planner of the Toledo Lucas County Plan Commission did
not indicate that there was any subterfuge in not revealing that
the proposed sites were for public housing. Rather the Commis-
sion’s staff believed that their responsibility was to ensure that
the proposals would meet the technical requirements for platting
and whether the housing was public or private would not play a
significant role in making that determination.
5a
narily denied Skillken’s request for rezoning on March 19,
1974. On March 21, 1974 the Commission rescinded its
earlier approval of the preliminary platting for the Hol-
land-Sylvania site. On March 26, 1974, City Council finally
and formally rejected Skillken’s request for rezoning of
the Heatherdowns site by passage of Resolution 1-74.
The plaintiff’s filed this action on May 28, 1974. At the
request of the plaintiffs and because of its importance, not
only to the parties involved but also to the community, the
case was expedited for an early hearing which the Court
scheduled for July 15, 1974. The defendants subsequently
requested a trial by jury which the plaintiffs opposed. The
Court without ruling upon defendant’s right to a trial by
jury, bifurcated the trial so that the issue of injunctive
relief would be heard to the Court without a jury pursuant
to Curtis v. Loether, 94 S. Ct. Rptr. 1005 (1974).° After
ruling upon various preliminary matters,* the hearing upon
plaintiffs’ request for declaratory and permanent injunc-
tive relief commenced on July 15, 1974, and continued, with
interruptions on July 18, into the morning of July 19,
1974.
III. Hovsine
The City of Toledo, according to the 1970 census, had
a population of 383,818 persons; 329,068, or approximately
86%, were white; 52,915, or approximately 14% were black;
and 1,835, or less than 1% were of other minority groups.
It quickly became apparent from the testimony of various
witnesses and the statistical evidence submitted that the
° See Pretrial Order filed July 3, 1974.
* Among the Court’s rulings were denials of motions to intervene
filed by both plaintiff-applicants, see Memorandum and Order filed
July 1, 1974, and defendant-applicants. See Memorandum and
Order filed July 8, 1974.
6a
City of Toledo is a racially segregated city with minority
groups‘ heavily concentrated in limited sections of the City
known as the ‘‘Southwest Corridor,’’ or the ‘Black Cor-
ridor.’’* The forces which brought about this segregated
housing pattern were many. Among them were a policy
of channeling or steering white prospective buyers away
from black neighborhoods by real estate agents. Blacks
also encountered far greater difficulty in obtaining financ-
ing for homes than their white counterparts. Unfortunately,
the record very clearly shows that these forces are still at
work with the effect of creating de facto segregation not
only in housing but also in the racial composition of the
public schools in the City.°
Past public housing projects were, until very recently,
consistently placed in areas adjacent to already highly con-
centrated minority housing further adding to the segre-
gated pattern. TMHA and the Commission’s Staff, in an
attempt to change that policy and scatter public housing
projects throughout the City, cooperated with Skillken in
selecting three sites which they believed would accomplish
7In referring to minority groups the Court intends to include
in this designation such races, creeds and national origins as are
normally so indicated including specifically Black Americans,
American Indians, Orientals and individuals with Spanish sur-
names.
® See plaintiffs’ exhibit 165, a 1970 Toledo Urban Area Census
Tract Map, illustrating the racial composition of the City of
Toledo; and plaintiffs’ exhibit 170, a ‘‘Black’’ Map illustrating
the percent of blacks living in any one block of the City of Toledo.
®The City of Toledo school system is classified as a ‘‘neighbor-
hood school eonecept.’’ As a result of the segregated housing pat-
tern in the City there is great disparity in the racial composition
of both elementary schools, compare Longfellow: Minorities—10,
Whites—1,106 to Lincoln: Minorities—893, Whites—0, and high
schools, compare Bowsher: Minorities—50, Whites—1,777 to Scott :
Minorities—2,183, Whites—60. See plaintiff’s exhibits 67-69.
7a
this purpose. The Heatherdowns site,” the Stateline site ™
and the Holland-Sylvania™ site are all located in areas
where there is 0-2% minority population. Furthermore the
sites would be scattered in distinct sections of the City:
Heatherdowns in the southwest corner, Holland-Sylvania
in the west and Stateline in the north. The testimony very
clearly showed that given the presently existing and quite
limited availability of land in the City, the sites could not
be scattered more. The records of the hearings before the
Commission and the Council are a sad display of bigotry,
intolerance and selfishness at its worst. With a great, but
totally hyprocritical, show of piety, public officials and
neighboring property owners pretended that to develop
groups of dwellings would only create new ghettoes and
that acceptable minority housing can only be obtained by
building or buying individual houses throughout the city,
or better still, by going out into the suburbs or rural areas
beyond the city. The evidence in this case leaves no doubt
that the actions and attitudes which have created segrega-
tion in Toledo are so strong and so persistent that only
very positive court action can change the present housing
patterns. The housing that was proposed for these sites
would be under HUD’s Turnkey III Program, which pro-
vides that the public housing be constructed for single-fam-
ily dwelling units with potential ownership by the resident.
The prospective residents would be selected by TMHA
from its eligibility lists. Presently 70% of the families liv-
rhe The _ school which serves that area is Maumee High and
the racial composition as of 1973, was: Minorities—32, Whit
1,333. Plaintiffs’ Exhibit 71. 25: aya
"The high school which serves that area is Whitmer High and
the racial composition as of 1973 was: Minorities—20; Whites—
2,935. Plaintiff’s Exhibit 70.
P as The _ school which serves that area is Rogers High and
ie racial composition as of 1973 was Minorities—332. Whi
1,986. Plaintiffs’ Exhibit 69. ee
8a
ing in TMHA family projects are minorities.** Further-
more, approximately 70% of the people on the waiting list
for Turnkey III housing are minorities and approximately
50% of the total minority population in the City are eligible
for public housing.’** The inescapable conclusion that must
be drawn from these statistics is that decisions regarding
public housing disproportionately effect minority groups
since they comprise the vast majority of people who qualify
for such housing.
IV. Inrt1a, DETERMINATION OF DISCRIMINATION
The primary emphasis of the plaintiff’s lawsuit is not
grounded upon a claim of a denial of a fundamental right to
decent housing, Lindsey v. Normet, 405 U.S. 56 (1972) or
upon a claim of discriminatory treatment engendered by
suspect wealth classification, San Antonio v. Rodriquez, 411
U.S. 1 (1973). Instead, the plaintiffs contend that the de-
fendants’ decisions to reject the proposed housing sites
were racially motivated. This is a serious charge, and
one that this Court has grappled with in many forms.
See Afro-American Partolmen’s League v. Duck, 366 F.
Supp. 1095 (N.D. Ohio 1973). And although it has been a
score of years since the federal judiciary cast aside any
doubts that racial discrimination would not be tolerated,
Brown v. Board of Education, 347 U.S. 483 (1954), the
subtleties that have been refined and developed to perpe-
tuate discriminatory practices require that the judiciary
continue to scrutinize all decisions of public or private
organizations involving the likelihood of discrimination and
intervene postively when necessary to create and promote
equality. There can no longer be any question that under
our Constitution distinctions in treatment based upon race
are inherently suspect. Brown v. Board of Education,
*8 Plaintiffs’ Exhibit 60.
** Td. and plaintiffs’ Exhibit 61.
9a
supra; McLaughlin v. Florida, 379 U.S. 184 (1964) ; Loving
v. Virginia, 388 U.S. 1 (1967).
Furthermore, Congress has continued to expand the pro-
tection of individual rights by the passage of the Fair
Housing Act. As stated at the outset of this legislation,
it was enacted to ensure a ‘‘policy of the United States
to provide, within constitutional limitations, for fair hous-
ing throughout the United States’’ 42 U.S.C. §3601. Similar
to the 1866 Civil Rights Act, this legislation passed as
Title VIII of the Civil Rights Act of 1968, is a congres-
sional exercise of power under the Thirteenth Amendment
to eliminate the badges and incidents of slavery. The
United States Supreme Court recognized this by stating,
when reviewing an action under 42 U.S.C. §1982, that:
[W]hen racial discrimination herds men into ghettos
and makes their ability to buy property turn on the
color of their skin, then it too is a relic of slavery.
Jones v. Mayer Co., 392 U.S. 409, 442-43 (1968).
Therefore Title VIII and Civil Rights Act of 1866 to-
gether comprehensively spell out the right of an individual -
to rent or purchase housing without suffering discrimina-
tion and to obtain federal enforcement of that fundamental
guarantee. Jones, supra. As stated by the United States
Court of Appeals for the Eighth Circuit in Williams v.
The "Matthews Co., No. 73-1765 (8th Cir. filed June 20,
1974):
Recent cases make clear that the statutes prohibit all
forms of discrimination, sophisticated as well as simple-
minded, and thus disparity of treatment between whites
and blacks, burdensome application procedures, and
tactics of delay, hinderance, and special treatment must
receive short shrift from the courts. See United States
v. Pelzer Realty Company, Inc., 484 F.2d 438 (5th Cir.
1973); United States v. Youritan Construction Com-
pany, No. C-71 1163 ACW (N.D. Cal., filed Feb. 8,
1973); Hall v. Freitas, 343 F. Supp. 1099 (N.D. Cal.
1972) ; Newbern v. Lake Lorelei, Inc., 308 F. Supp. 407
10a
(S.D. Ohio 1968) ; Brown v. Lo Duca, 307 F. Supp. 102
(E.D. Wise. 1969).
Race is an impermissible factor in real estate trans-
actions under both 42 U.S.C. §1982 and 42 U.S.C. §3604
and ‘‘cannot be brushed aside because it was neither
the sole reason for discrimination nor the total factor
of discrimination.’’ Smith vy. Sol D. Adler Realty, 436
F.2d 344, 349-350 (7th Cir. 1970). The courts will look
beyond the form of a transaction to its substance and
proscribe practices which actually or predictively re-
sult in racial discrimination irrespective of defendant’s
motivation. See United States v. Grooms, 348 F. Supp.
1130, 1133-1134 (M.D. Fla. 1972); United States v.
Real Estate Development Corporation, 347 F. Supp.
776, 782 (N.D. Miss. 1972); United States v. Reddock,
No. 6541-71-P (S.D. Ala. filed Jan, 1, 1972), aff’d, 467
F.2d 897 (5th Cir. 1972).
On this basis the Court finds that the concept of the
‘‘prima facie case’’ under the Civil Rights Act of 1866
is further augmented by the Fair Housing legislation and
applies to discrimination in housing as much as to discrimi-
nation in other areas of life.
In reviewing the record in this context the Court finds
that in the past recommendations by the Commission’s St ff
with regards to platting were normally approved.” Mr.
Cline, member of the Commission since 1937, Chairman
since 1941 and at the time the three site proposals were
rejected, could not recall any specific incidents when the
Commission’s Staff recommendations were not approved
but seemed to remember it occurring once about 10 to 15
years ago. It is notable that although he had had ample
opportunity before the trial to research the records of the
Commission he could not offer dates or occasions but
only vague recollections. The Court is forced to conclude
that there really never were any previous instances of the
1° The Commission’s Staff recommended approval of the platting
of all three sites and also the rezoning of the Heatherdowns site.
lla
Commission doing what it did here. The record is also re-
plete with rezoning changes in the Heatherdowns area
from R-A to various other residential and commercial uses.
The present zoning for this area was frequently referred
to as in a “‘holding status’’ with rezoning contemplated in
the near future. Furthermore when specifically asked if
the rescission of the Holland-Sylvania’s platting would
have occurred if the development were not designated for
public housing, Mr, Cooke, present Chairman and then
member of the Commission, answered: ‘‘Probably not. I
think that’s inescapable. Probably not.’’'* When the fact
that the majority of people who are presently living in
public housing are members of minority races is coupled
with the fact that the majority of persons who are eligible
and waiting for public housing are also members of minor-
ity races, the conclusion that any discussion of public hous-
ing has racial overtones is unavoidable. In this light and
based upon the overwhelming evidence introduced, the
Court finds, notwithstanding the attempts by the City to
defend its actions, that the plaintiffs have clearly and
convincingly met their burden of establishing a case of
racial discrimination on the part of the City. Burton v.
Wilmington Park Authority, 365 U.S. 715 (1961); United
Farmworkers vy. City of Delray Beach, 493 F.2d 799 (5th
Cir. 1974); United States v. Pelzer Realty Company, 484
F.2d 488 (5th Cir. 1973); Hawkins v. Town of Shaw, 461
F.2d 1171 (5th Cir. 1972); Kennedy Park Homes Ass’n v.
City of Lackawanna, 436 F.2d 108 (2nd Cir. 1970), cert.
denied 401 U.S. 1010 (1971); Dailey v. City of Lawton, 425
F.2d 1037 (10th Cir. 1970); Banks v. Perk, 341 F.Supp.
1175 (N.D. Ohio 1972) aff’d in part, rev’d in part 473 F.2d
910 (6th Cir. 1973).
16° Defendants Exhibit AY, Deposition of Stratman Cooke at
page 63.
l2a
V. JustiricaTion ror DIscRIMINATION
Once the existence of a racially discriminatory effect
is proven, the burden shifts to the defendants to demon-
strate that the discrimination was necessary to promote
a compelling governmental interest. In re Griffiths, 413 U.S
717 (1973); McLaughlin v. Florida, supra; Loving v. Vir-
ginia, supra; Kramer vy. Union Free School District, 395
U.S. 621 (1969) ; Shapiro v. Thompson, 394 U.S. 618 (1969) ;
Sherbert v. Verner, 374 U.S. 398 (1963); Skinner v. Okla-
homa, 316 U.S. 535 (1942).
The City suggests a number of reasons to justify its ac-
tions and to meet the ‘‘compelling interest’’ test.
A. TMHA
The City first argues that the past housing projects that
TMHA has supervised or been involved with have proven
to be failures. Further, that TMHA has not worked closely
with the City or Commission in developing public hous-
ing. The Court can take judicial notice of the fact that
TMHA-involved projects have encountered difficulties. See
Markowitz v. TMHA, Civil No. 70-268 (N.D. Ohio Memo-
mandum filed April 25, 1973). However, the City’s mere
assertion cannot justify its actions. The City as an equal
partner with TMHA is also charged with the responsibility
of developing an integrated housing pattern for the com-
munity. The Mayor has a direct input with TMHA for he
selects the persons who serve as members of TMHA’s
Board of Directors. No evidence was submitted to show
that the City attempted to prod TMHA to become a more
effective organization or that TMHA spurned the City’s
efforts in that direction. Rather, it can only be concluded
that if there were a demise of TMHA as a responsible
entity, the City idly watched it occur. The evidence sub-
mitted does not support the City’s contention that TMHA
has not worked closely with it. The testimony of the Com-
mission’s Staff indicated that there was a close and coop-
13a
erative working relationship between staffs of both or-
ganizations. Further, the failure of TMHA to appear at
the Commission’s and Council’s hearings on the proposals
for these sites may be attributed to the fact that neither
the Commission uvr the Council ever requested members
of TMHA to appear. The defendants cannot merely shift
the blame to another governmental organization because
of that organization’s lack of cooperation and efficiency
when it is evident that the defendants failed to show any
initiative either. There is some indication that the members
and employees of TMHA justified their failure to involve
themselves in the Commission and City proceedings in
this matter because under its reading of the housing laws,
all responsibility in this area is imposed upon Skillken.
This example of bureaucratic ducking is typical of TMHA’s
pusillanimous approach to its responsibilities.
B. Neighborhoods
The Heatherdowns site is presently zoned R-A (20,000
sq. ft. lots). In order that the proposed public housing be
constructed at this site a rezoning to R-1 (9,000 sq. ft.
lots) or R-2 (6,000 sq. ft. lots) was required. City Council
and the Commission attempted to justify rejecting the pro-
posals on the grounds it was not beneficial for the neigh-
borhood. It appears that specific reference is made to Ragan
Woods, a housing development across what will eventually
be a four lane divided highway from the proposed site.
Ragan Woods is comprised of homes valued in excess of
$70,000 and presently zoned R-A. However, the record also
shows that this area has been frequently rezoned from
the initial R-A to other types of residential and commer-
cial uses.’ The City’s explanation for denial of the re-
zoning is consequently no real explanation at all when
viewed in these terms, At most, it is an excuse and a very
poor one. It seems to this Court to be completely illogical
7 Plaintiffs Exhibits 85-103.
l4a
to contend that rezoning to other residential and commer-
cial uses can be beneficial to the neighborhood yet the plain-
tiff’s requested rezoning would be harmful, unless it be
conceded that having poor or minority persons in the
neighborhood is harmful, and may legally be forbidden.
As stated in Banks v. Perk, supra at 1180 citing from
Dailey v. City of Lawton, 425 F.2d 1037 (19th Cir, 1970):
‘*(I]f proof of a civil right violation depends on an
open statement by an official of intent to discriminate,
the Fourteenth Amendment offers little solace to those
seeking its protection.’’ 425 F.2d at 1039. Therefore in
the absence of any supervening necessity or compelling
governmental interest, any municipal action or inaction,
overt, subtle or concealed, which perpetuates or reas-
onably could perpetuate discrimination especially in
public housing, cannot be tolerated.
A similar ‘‘neighborhood”’ defense is made with regards
to the denial of the Stateline site and the rescission of the
Holland-Sylvania site. Similarly the Court disposes of
those defenses for the reasons enunciated above.
C. Technical Requirements
The defendants argue that the Stateline site proposal
was properly rejected because there was evidence of ‘‘fill’’
and that the land is subject to flooding. Mr. Cline sup-
ported these contentions by referring to photographs shown
to him by Mrs. Burke, a woman who had lived in the area
for over fifty years. These photographs showed that there
was water on the land at one time. However, according to
the testimony of Mr. Huber, a registered professional civil
engineer, the land was above flood level. Soil boring tests
conducted on the site ** demonstrated that what little old
fill existed was shallow, and the building foundations would
rest on undisturbed original soil. From ail the evidence
there appears to be no engineering reason why the proposed
8 Plaintiffs Exhibits 15-18.
lda
housing development cannot be constructed. No competent
fact finder could properly have given any credence to the
exaggerated and distorted memories of so unabashedly
interested a witness as Mrs. Burke against the scientific
evidence which contradicted it. To accept prejudiced lay
testimony as showing an absence of compliance with tech-
nical requirements is so patently a subterfuge as to be
totally unacceptable.
D. Clustered Housing
The City also argued that clustered housing may be
fine theoretically but is lacking in a practical sense. Since
the three proposed developments consist of small group-
ings of houses, the City submits it properly rejected them.
Such an argument completely overlooks that clustered hous-
ing developments are not only rampant throughout the
Toledo Community but throughout the United States. To
contend that these proposals were properly rejected be-
cause they are clustered housing when over the years the
Commission and the City have dutifully approved platting
and rezoning for other clustered housing developments
in every section of the city, is nonsensical. For what dis-
tinguishes the Skillken proposed clustered housing from
the already existing clustered housing developments other
than the potential residents? This argument is particularly
offensive when it is applied to the Heatherdowns site. Is
Ragan Woods any less clustered because the lots and the
prices are twice as big as Skillken proposes? The appalling
cluster of the adjacent Southwyck development, shown on
the exhibits in evidence, totally demolishes this argument.
E. Justification Lacking
In the instant case, as in the Lackawanna case, the plain-
tiffs seek ‘‘to exercise their constitutional right of ‘freedom
from discrimination by the States in the enjoyment of prop-
erty rights.’ Shelley v. Kraemer, 334 U.S. 1, 20 (1948).
The effect of the City’s action is ineseapably adverse to the
16a
enjoyment of this right. In such circumstances the City
must show a compelling governmental interest in order to
overcome a finding of unconstitutionality.’’ Lackawanna,
supra at 114.
After a complete review of the record, the Court cannot
find that the City has even come close to meeting its
burden. The justifications the City tenders are devoid of
the requisite ‘‘compelling’’ nature. When viewed in the
light of past practices of the City they lack merit and are
transfigured into vain, albeit subtle, attempts to veil racially
motivated decisions. The Court cannot be swayed by what
the City articulates ** when the effect of its decisions are
discriminatory. The Constitution does not permit, and there-
fore this Court cannot permit, unjustified racial discrimina-
tion.
VI. Mana.ey
The defendants at numerous junctures argued that the
instant case is governed by the holding of Mahaley v. Cuya-
hoga Metropolitan Housing Authority, No. 73-1407 (6th
Cir. filed July 9, 1974). This Court finds it clearly dis-
tinguishable. In Mahaley the Court of Appeals was asked
to decide if a constitutional violation resulted when neigh-
boring municipalities did not enter into cooperation agree-
ments with the local housing authority and refused to con-
sent to the construction of public housing units within
their boundaries. The Court of Appeals held there was not
Mr. Raymond Palmer, Acting Director of the Department of
Community Development, testified in reference to plaintiffs’ ex-
hibits 81-83, that the City in applying for financial grants from
HUD indicated that 150 housing units were scheduled for con-
struction to provide homes for displaced persons. The Skillken
housing developments were included within the 150 anticipated
housing units. This creates a situation whereby the City seeks
funds for construction of public housing and then turns around
and rejects the proposals of the developer which would implement
its stated policy.
17a
a constitutional violation because the decision to enter into
a Cooperation Agreement was within the discretion of the
municipality. In the instant case, the City has previously
entered into a cooperation agreement with the local hous-
ing authority (TMHA).” Further, this Court has found
that the discriminatory housing pattern which has evolved
in the City resulted from a prior pattern of discrimination
and also that the City’s actions fall more heavily upon
minority group members than upon the population as a
whole. See Citizens Comm. for Faraday Wood v. Lindsay,
362 F.Supp. 651 (S.D. N.Y. 1973). Although this Court
is aware of the Mahaley admonitions, it does not find the
Mahaley holding to be controlling upon the case before it.
VII. Conc.iusion
The Court is cognizant of the complex emotional prob-
lems that a case such as this presents. Appropriately, it
reiterates the oft quoted words of Justice Day, writing for
a unanimous Court, in Buchanan v. Worley, 245 U.S. 60,
80-81 (1917):
That there exists a serious and difficult problem aris-
ing from a feeling of race hostility which the law is
powerless to control, and to which it must give a meas-
ure of consideration, may be freely admitted. But its
solution cannot be promoted by depriving citizens of
their constitutional rights and privileges.
The evidence in this case demonstrates that this Court’s
conditional certifying of this matter as a class action was
correct. Therefore, this action shall proceed as a class
action, and the class of plaintiffs is hereby certified as
including all low income minority persons residing in the
Toledo Metropolitan area who, by virtue of their race and
2° This Court has previously held when asked to review the
Cooperation Agreement that it is binding upon the City. See
Davis v. City of Toledo, Civil No. 70-157 (N.D. Ohio filed June 8,
1970).
18a
poverty, are unable to secure decent, safe and sanitary
housing in the City of Toledo, at rents or prices which
they can afford without assistance from the Toledo Metro-
politan Housing Authority (T.M.H.A.), and who are eligible
for the Turnkey III Housing Program.
The named plaintiffs are members of this class, and they
have more than adequately represented the other members
of the class.
As to this portion of the case, the Court finds that Reso-
lution 1-74 passed by the Toledo City Council on March
26, 1974, and the actions taken by the Toledo City Plan
Commission in disapproving the rezoning of the Heather-
downs Boulevard site, and the platting of the Holland-
Sylvania Road, Stateline Road-Lewis Avenue, and Heather-
downs Boulevard sites are void and unenforceable.
The Court further finds that the plaintiffs are entitled
to a permanent injunction restraining the defendants, their
officers, agents, and employees, and any and all other per-
sons acting in concert or participation with them:
(1) From enforcing Resolution 1-74 passed by the
Toledo City Council on March 26, 1974, and the
actions of the Toledo City Plan Commission in
disapproving the rezoning and platting of the
Heatherdowns Blvd., Holland-Sylvania Road, and
Stateline Road-Lewis Avenue sites;
(2) From failing to take all necessary steps to ap-
prove Skillken’s request for platting approval on
the Heatherdowns Blvd., Holland-Sylvania Road,
and Stateline Road-Lewis Avenue sites, and for
rezoning the Heatherdowns Blvd. site;
(3) From engaging in any acts or practices which have
the purpose or effect of denying equal housing
opportunities because of race, color, religion, or
national origin, or of interfering with the imple-
mentation and execution of federal housing pro-
grams, or of breaching the August 12, 1968 Coop-
eration Agreement; and
19a
(4) From expending, or borrowing on any monies al-
located to defendants City of Toledo or Toledo
City Plan Commission by the U.S. Department of
Housing and Urban Development, except for those
funds directly related to hardship acquisitions and
to the immediate rehabilitation and expansion of
the low and moderate income housing supply in
the City of Toledo until defendant have complied
with (1), (2) and (3) above;
The Court further finds that the issues decided in this
case involve controlling questions of law as to which there
are substantial ground for cifference of opinion and an
immediate appeal would advance the ultimate termination
of this litigation. Therefore the Court will permit an inter-
locutory appeal pursuant to 28 U.S.C. § 1292(b).
This matter is continued to a date to be fixed by the
Court for a determination of the issue of damages for the
plaintiff Skillken, and of the question of the request of the
defendants to a jury trial upon this issue.
This memorandum will serve as the Court’s findings of
fact and conclusions of low. Plaintiffs may prepare and
submit an order reflective of these findings and conclusions
in accordance with the Local Civil Rules.
/s/ Don J. Youne
Don J. Young
Unitep States District Jupcr
Toledo, Ohio
20a
In conformity with Rule 77 (d) F.R.C.P. please take
notice that the following order of judgment was entered
in this court on October 8, 1974.
Mark Scuuiacuet, Clerk
(Caption OmitTep 1n PrintING)
Civil No. C 74-202
ORDER
Pursuant to this Court’s findings of fact and conclusions
of law contained in its memorandum of August 28, 1974,
the Court finds that it has jurisdiction of this action pur-
suant to 28 U.S.C. §§ 1331 and 1348, and 42 U.S.C. §§ 3612
and 3617 and that this action is properly maintained pur-
suant to 42 U.S.C. §§1401, et seq., 1441 et seq, 1981, 1982,
1983, 2000d, and 3601 et seq. and the Thirteenth and Four-
teenth Amendments to the United States Constitution.
THEREFORE FOR Goop Cause AppEaRInG, It Is
1.
OrpereD that this action be and hereby is certified to
proceed as a class action pursuant to Rule 23(a), (b)(1)
(A)(B), and (2) of the Fed. R. Civ. P. with the class con-
sisting of all low income minority persons residing in the
Toledo Metropolitan Area who, by virtue of their race
and poverty, are unable to secure decent, safe, and sani-
tary housing in the City of Toledo, at rents or prices which
they can afford without assistance from the Toledo Metro-
politan Housing Authority (TMHA) and who are eligible
for the Turnkey III Housing Program.
Anp It Is FurtHer
OrperED that Sandra Hueston and Jose Maldonado are
members of this class of plaintiffs and are adequate repre-
sentatives of the class.
2la
Anp Ir Is FurtrHer
OrperED and Derciarep that the passage of Resolution
1-74 by the Toledo City Council on March 26, 1974, in dis-
approving the rezoning of the Heatherdowns Boulevard
site, and the actions taken by the Toledo City Plan Com-
mission in disapproving the rezoning of the Heatherdowns
Boulevard site, and the platting of the Holland-Sylvania
Road, Stateline Road-Lewis Avenue, and Heatherdowns
Boulevard sites, without any regard to the defendants’
intentions or motivations, are and have the effect of being
racially discriminatory, of perpetuating racial residential
segregation, and that these actions deny plaintiffs and
the members of their class equal housing opportunities and
violate rights secured to plaintiffs under 42 U.S.C. $§ 1401,
et seq., 1441, et seq., 1981, 1982, 1983, 2000d, aid 3601, et
seq., and the Thirteenth and Fourteenth Amendments to
the United States Constitution, and constitute a breach of
the August 12, 1968 Cooperation Agreement.
Anp It Is FurtHer
Orperep and Deciarep that Resolution 1-74 passed by
the Toledo City Council on March 26, 1974, and the actions
taken by the Toledo City Plan Commission in disapproving
the rezoning of the Heatherdowns Boulevard site and the
platting of the Holland-Sylvania Road, Stateline Road-
Lewis Avenue, and Heatherdowns Boulevard sites are void
and unenforceable.
Tuererore It Is
II.
OrpereD that the defendants Harry Kessler, Gene Cook,
William Copeland, Pamela Daoust, Andrew Douglas, June
Galvin, Ray Niles, Carol Pietrykowski and Max Reddish,
adopt a resolution changing the zoning of the Heather-
downs Boulevard site (as defined in plaintiff Skillken’s
application for rezoning) from its present R-A zoning
classification to R-1 zoning classification.
Anp It Is FurtHer
OrverRED that the defendants Richard Burke, Stratman
Cooke, Robert Martin, Paul Schimmel and John W. Stoep-
ler adopt resolutions giving approval to the preliminary
plats submitted by Skillken for the Holland-Sylvania Road,
Stateline Road-Lewis Avenue, and Heatherdowns Boule-
vard sites.
Anp It Is FurtHer
OrpvereD that the defendants, their officers, agents, em-
ployees, and any and all other persons acting in concert or
participation with any of them, be and they are hereby
PERMANENTLY ENJOINED:
A. From taking any action to enforce or give any
effect whatever to Resolution 1-74 passed by the
Toledo City Council in disapproving the rezoning
of the Heatherdowns Boulevard site and the actions
of the Toledo City Plan Commission in recommend-
ing the disapproval of the rezoning of the Heather-
downs Boulevard site and the actions of the Toledo
City Plan Commission in disapproving the prelimi-
nary plats for the Heatherdowns Boulevard, Hol-
land-Sylvania Road, and Stateline Road-Lewis
Avenue sites;
B. From failing to take all necessary and appropriate
steps to approve the rezoning of the Heatherdowns
Boulevard site to R-1 (9,000 sq. ft.) and the plat-
ting of the Heatherdowns Boulevard, Holland-Syl-
vania Road, and Stateline Road-Lewis Avenue sites,
and to approve the final plats for said sites as long
as the same conform to and fulfill the descriptions,
conditions and requirements of the preliminary
plats, including the modification of the Heather-
down plat from R-2 toR-1 zoning.
C. From interfering with, delaying, failing to take,
or refusing to take, all necessary and appropriate
23a
steps to ensure, facilitate, and expedite the develop-
ment and construction of public housing on the
Heatherdowns Boulevard, Holland-Sylvania Road,
and Stateline Road-Lewis Avenue sites;
D. From engaging in any acts or practices which have
the purpose or effect of denying equal housing op-
portunities because of race, color, religion, or na-
tional origin, or of interfering with the implemen-.
tation and execution of Federal housing programs,
or of interfering with or breaching the August 12,
1968 Cooperation Agreement.
Anp It Is FurtTHer
IIT.
Orperep that in order to eliminate the past and continu-
ing effects of racial residential segregation, the defendants
shall, after consultation with plaintiffs, submit to this
Court within ninety (90) days after the entry of this order,
a comprehensive plan whereby the defendant City of To-
ledo and Toledo City Plan Commission, their members,
officers, agents, employees, and all persons acting in concert
and participation with them, shall affirmatively engage
themselves in substantial efforts to eliminate discrimina-
tory barriers in the total housing supply and make hous-
ing in a broad choice of neighborhoods freely and fully
available to minority persons.
Anp It Is FurtHer
Orverep that the following defendants’ submission to
the Court of the above plan, plaintiffs may submit to the
Court within twenty (20) days thereafter any objections
or alternative suggestions to such plan.
Anp It Is FurtHer
IV.
OrpereD that this Court’s memorandum of August 28,
1974 is hereby modified to read as follows:
24a
A. The name ‘‘Cook’’ as it appears on page 2 of the
memorandum shall read ‘‘Cooke.’’
B. The sentence ‘‘ Regan Woods is comprised of homes
valued in excess of $70,000 and presently zoned
R-A”’ as it appears on page 11 of the memorandum
shall read,
‘*Ragan Woods is comprised of homes valued in
excess of $70,000 and presently zoned R-B.’’
C. The name ‘‘Raymond Palmer’’ as it appears on
page 14 of the memorandum shall read ‘‘Wayman
Palmer.’’
Anp It Is FurtHer
Orpexep that the issue of damages for the plaintiff Skil-
ken and the request of the defendants for a jury trial upon
this issue be continued to a date to be fixed by this Court,
Anp It Is FurtHer
OrperED that this action involves controlling questions
of law as to which there are substantial grounds for differ-
ence of opinion; that an immediate appeal would advance
the ultimate termination of this litigation; and that an in-
terlocutory appeal will be permitted pursuant to 28 U.S.C.
§ 1292(b).
Anp It Is FurtrHer
OrvereD that plaintiffs shall receive their costs expended
to date herein.
Anp It Is FurtHer
Orverep that this Court shall retain jurisdiction over
this matter for the entry of such further orders as may be
appropriate to effectuate the provisions of this order.
Au. or Wuicu Is So OrpeErep.
/s/ Don J. Younea
Don J. Young
United States District Judge
Toledo, Ohio.
25a
Nos, 74-2116 & 74-2320
t
Unitep States Court or APPEALS
For tue Sixtu Circvir
No. 74-2116
JosepH SKILLKEN & Co., et al, Plaintiff-Appellees,
v.
City or To.epo, et al, Racan Woops Homeowners
Association, et al, Intervenor, Defendants-A ppellants.
No. 74-2320
JosEPH SKILLKEN & Co., et al, Plaintiff-Appellees,
v.
City or Torepo, et al, Defendants-Appellants.
Appea from United States District Court for the Northern
District of Ohio, Western Division
Decipep anp Fitep Decemser 10, 1975.
Before Puuuips, Chief Judge, Weick, Circuit Judge, and
Mites*, District Judge.
*The Honorable Wendell A. Miles, Judge, United States Dis-
trict Court for the Western District of Michigan, sitting by
designation.
26a
Weick, Circuit Judge, delivered the opinion of the Court,
in which Mutes, District Judge, joined. Putups, Chief
Judge, (pp. 27-28) filed a separate concurring opinion.
Weick, Circuit Judge. These two appeals were consoli-
dated for oral argument.
They involve important questions of law in a low income
public housing suit brought under 42 U.S.C. ¢§ 1401, et seq.,
§§ 1981-1983, 2000d, et seq., and §§ 3601, et eq., concerning
the propriety of a mandatory injunction issued by the Dis-
trist Judge commanding the governing body of the City
of Toledo, Ohio, namely, the members of the City Council,
to rezone by a spot zoning ordinance an area in the neigh-
borhood of expensive residential property in the Ragan
Woods Addition, which area had been zoned previously
under Toledo’s comprehensive zoning ordinance. The man-
datory injunction also required the defendants to approve
a preliminary plat for that area, and for two other areas
of the city, all to accommodate the construction of one
hundred forty-five Turnkey III Jow cost public housing
units in said areas.
They further involve the propriety of the order of the
District Court, not considered in its published opinion, re-
quiring the City Council to submit to the Court, within 90
days, a comprehensive plan for the integration of the
residential neighborhoods of the City of Toledo.
The property owners in the Ragan Woods Addition filed
a motion to intervene as defendants in the suit against the
municipal defendants, on the ground that to change the
existing comprehensive zoning ordinance to accommodate
the construction of low cost housing would depreciate sub-
stantially the values of their properties. The motion to
intervene, together with a proposed answer to the com-
plaint, was promptly filed within three days after the
municipal defendants had filed their answers to the com-
plaint.
27a
The District Judge summarily denied the motion without
even a hearing, the grounds for denial being that it was
untimely filed, that the property owners did not have suf-
ficient interest, and that they were adequately represented
by counsel for the municipal defendants.
Appeals were taken to this Court by the property ownefs
who were denied intervention in case number 74-2116, and
by the municipal defendants in case number 74-2320.
The municipal defendants moved for a stay of the Dis-
trict Court’s mandatory injunction pending appeal, which
stay was granted by the District Court, but only on con-
dition that the City of Toledo execute a supersedeas bond
is the amount of $880,709." The City promptly posted the
bond.
The plaintiffs in the case were Joseph Skillken & Com-
pany (Skillken), a Columbus, Ohio corporation, engaged
in the development and construction of residential housing
units, Toledo Metropolitan Housing Authority (TMHA),
Jose Maldonado and Barbara Talley, a Mexican American
* Revised Code of Ohio, See. 2505.12 exempts the state and mu-
nicipalities and their offices from giving bonds. See Sharon Realty
Co. v. Westlake, 114 Ohio App. 421 (1961). Similarly, Rule 62(e)
of the Fed.R.Civ.P. exempts the United States or its officers or
agencies. 28 U.S.C. § 2408.
In Marrow v. City of Ferguson, 114 F.Supp. 755, 756 (E.D. Mo.
1953), aff’d 210 F.2d 520 (8th Cir. 1954), the District Court,
under Missouri statutes similar to Ohio’s, held that the statutes
created substantive rights, not merely procedural, and dispensed
with bond in an appeal.
Furthermore, the District Court had previously bifurcated the
damage issues from the injunctive issues, and no damages had
been awarded. The record does not disclose any question about
the solvency of the City or its ability to respond in damages. It is
not understandable, in any event, why such a high bond was
required. The District Court even had discretion to issue the stay
without any bond, in the absence of proof of likelihood of harm.
Continental Oil Co. v. Frontier Refining Co., 338 F.2d 780 (10th
Cir. 1964).
28a
and a Negro, on behalf of themselves and other low income
minorities living in Toledo, and who allegedly are in need
of housing.
The defendants were the City of Toledo, its Mayor, and
the individual members of its Plan Commission and City
Council. Skillken and TMHA were each represented by
their own attorneys. Maldonado and Talley were repre-
sented by the attorneys of Advocates for Basie Legal
Equality and the National Committee Against Discrimina-
tion in Housing. The municipal defendants were repre-
sented by the Director of Law of the City and his assistants.
The City had entered into a co-operation agreement with
TMHA on August 12, 1968.2 TMHA sought and received a
reservation of funds from the Department of Housing and
Urban Development (HUD) for the construction of 150
units of single-family low-income housing units under the
Turnkey III Program. TMHA thereafter advertised for
proposals on the 150 units. Skillken responded to the ad-
vertisement by submitting to TMHA a proposal for the
construction of 140 units of single-family housing. The
proposal was accepted and a letter designating Skillken
as the Turnkey III developer was issued by the Director
of TMHA. Under the Turnkey III Program the developer
is responsible for securing sites and obtaining all necessary
zoning and platting approvals,
Following discussions among Skillken, TMHA, and staff
members of the Plan Commission, three sites were chosen
upon which to construct the proposed public housing units.
Skillken then entered into option contracts for the acquisi-
tion of real property to build as follows:
?The 1968 co-operation agreement superseded a previous co-
operation agreement entered into in 1938, which was amended in
1940.
Under the 1938 agreement sites selected for low-rent public
housing required consent of the City of Toledo. The 1968 agree-
ment gave the City no such authority to approve sites. Davis v.
City of Toledo, 54 F.R.D. 386 (N.D.Ohio, W.D. 1970).
29a
50 units of public housing on the Heatherdowns Boule-
vard site (hereinafter Heatherdowns) ;
46 units of public housing on the Holland-Sylvania site
(Holland-Sylvania) ; and
34 units of public housing on the Stateline Road-Lewis
Avenue site (Stateline).
In December, 1973 Skillken requested approval from the
Plan Commission for the preliminary platting of the three
proposed sites. Simultaneously Skillken petitioned the Plan
Commission for a rezoning of the Heatherdowns site from
an R-A residential classification of 20,000-square foot lots
to an R-2 residential classification of 6,000-square foot lots,
which would permit construction of fifty single-family low
‘income housing units on lots of much smaller dimension
than authorized by existing zoning. Zoning changes were
not required for the HoHand-Sylvania or Stateline sites,
since existing zoning accommodated the proposals.
On January 24, 1974 the Plan Commission’s staff con-
ditionally recommended, and the Plan Commission ac-
cepted, the preliminary plat for the Holland-Sylvania site.*
During this meeting consideration was given to the pre-
liminary platting of the Stateline site, but action was de-
ferred until February 7, 1974 when the Plan Commission
met to consider the preliminary platting of the Stateline
and Heatherdowns sites.
* Preliminary platting is required under the Subdivision Rules
and Regulations of the City of Toledo, Ohio Revised Code makes
no provision for preliminary platting. Because the development
of a legal plat is complicated and expensive the Plan Commission
established a practice under which a developer may secure ap-
proval for a preliminary plat before going to the expense of
preparation of a complete plat. Whatever conditions the Commis-
sion might require in order to approve the preliminary plat could
then be met in the final plat.
Prior to this time the Plan Commission was unaware that public
housing was to be constructed on the sites because the staff had
neglected to advise it of that fact.
30a
Residents from these areas attended the meeting and
voiced strong disapproval of the construction of public —
housing units because of the potential water drainage
problems that higher density dwelling units would cause.
Additional objections will be discussed later in this opinion.
The Plan Commission deferred action until its March 7,
1974 meeting, at which time it rejected Skillken’s petition
for the platting of the Stateline site on the basis that ‘‘ [I]t
is not in the best interests of the residents in that area
...’’ The Plan Commission also rejected the petition for
platting and the request to rezone the Heatherdowns site
for the reason that ‘‘[T]he subdivision as presented...
does not meet the area requirements for the zoning. . . .”’
Following this action by the Plan Commission the Toledo
City Council preliminarily denied Skillken’s request to re-
zone the Heatherdowns site on March 19, 1974. On March
21, 1974 the Plan Commission rescinded its prior approval
for the Holland-Sylvania site, and on March 26, 1974 the
Council formally rejected Skillken’s request for rezoning
the Heatherdowns site by passage of Resolution 1-74.
On May 28, 1974 the plaintiffs filed the present suit.
They sought a mandatory injunction to compel the mem-
bers of the City Council of Toledo to rezone and plat the
Heatherdowns site and to approve a plat for the Holland-
Sylvania and Stateline sites so as to permit the construc-
tion of 130 low cost public housing units on said sites.
It was alleged that the action of the City Council and the
Plan Commission was racially motivated by intentional and
purposeful discrimination against black people who were
in need of public housing.
The District Judge in his published opinion found a pur-
poseful and intentional discrimination against black people
on the part of the City Council and the Plan Commission,
and directed counsel for plaintiffs to prepare an order
granting relief to the plaintiffs.
3la
The order, which was approved by the Court and entered
on October 8, 1974, however, substantially deviated from
the Court’s published opinion. It provided that the defend-
ants’ acts—
... Without any regard to the defendants’ intentions
or motivations, are and have the effect of being racially
discriminatory, of perpetuating racial residential seg-
regation and that these actions deny plaintiffs and the
members of their class equal housing opportunities.
Thus, ‘‘in effect’’ discrimination was added, whereas the
previous ground was purposeful and intentional discrimi-
nation, which was not proved.
But this was not all, The entire nature of the case was
changed by the following order (which was not in the
published opinion) :
Anp It Is FurtrnHer
Ill
Orperep that in order to eliminate the past and con-
tinuing effects of racial residential segregation, the
defendants shall, after consultation with plaintiffs,
submit to this Court within ninety (90) days after
the entry of this order, a comprehensive plan whereby
the defendant City of Toledo and Toledo City Plan
Commission, their members, officers, agents, employ-
ees, and all persons acting in concert and participation
with them, shall affirmatively engage themselves in
substantial efforts to eliminate discriminatory bar-
riers in the total housing supply and make housing in
a broad choice of neighborhoods freely and fully avail-
able to minority persons.
Anp It Is FurtrHer
Orperep that following defendants’ submission to
the Court of the above plan, plaintiffs may submit to
32a
the Court within twenty (20) days thereafter any ob-
jections or alternative suggestions to such plan.
(A. 64-65)
These provisions were patterned after orders in school
desegregation cases. They actually ordered integration of
the residential neighborhoods of the entire city of Toledo,
by means of low cost public housing, at public expense, and
irrespective of zoning ordinances.
I,
Tue ATTEMPTED INTERVENTION
Apprgau No. 74-2116
As before stated, the motion to intervene was filed within
three days after the answer to the complaint was filed by
the municipal defendants.
The motion was filed by four individual property owners
and by the Ragan Woods Homeowners Association, repre-
senting about 140 owners of property in the Ragan Woods
Subdivision, who are members of this class. The motion
stated that there are questions of law and fact common to
the class.
The common question of law and fact is the propriety
of the actions of the municipal defendants in disapproving
the requested rezoning and plat proposals for the Heath-
erdowns site referred to in the complaint.
The motion further stated that as neighboring property
owners they would be damaged by the proposed zoning
and that they have rights and interests protected by statute
and are entitled to intervene as a matter of right. They
state that disposition of the present suit may impair or
impede their ability to protect their interests. They also
assert that they have a permissive right to intervene as
shown by their proposed answer to the complaint, a copy
of which was attached to the motion to intervene.
33a
In their answer the intervenors state among other things
that the Heatherdowns Boulevard site was zoned R-A for
single-family residences, with minimum lot areas per family
of 20,000-square feet and minimum lot width of 100 feet.
It is alleged that this zoning was proper and conformed
to the most desirable, appropriate, and best use of the
property affected thereby at the time it was zoned,
They allege that the individual property owners and the
class they represent have expended over $10,000,000 in de-
velopment of their respective properties in reliance on the
existing zoning ordinances, and since said zoning there has
been no zoning change of any part of the Ragan Woods-
Heatherdowns area to R-2, 6000-square foot lots, as re-
quested by plaintiffs and denied by the co-defendants.
They allege that the proposed zoning change would con-
stitute ‘‘spot zoning’’, and that as a result the intervenors
and others will suffer great deterioration and diminution
in value of their respective properties, and that they will
be irreparably damaged, for which they have no adequate
remedy at law.
Since the District Judge summarily denied the motion
to intervene without a hearing and without taking evidence,
we must assume that the factual allegations in the motion
and in the accompanying answer are true.
Intervention as of right is governed by Rule 24(a) of the
Federal Rules of Civil Procedure, which provides:
(a) Intervention of Right. Upon timely application
anyone shall be permitted to intervent in an action:
(1) when a statute of the United States confers an un-
conditional right to intervene; or (2) when the appli-
cant claims an interest relating to the property or
transaction which is the subject of the action and he
is so situated that the disposition of the action may
as a practical matter impair or impede his ability to
34a
protect that interest, unless the applicant’s interest
is adequately represented by existing parties.
In our opinion the District Judge erred in ruling that the
application to intervene was untimely. It was filed within
only three days after the municipal defendants had an-
swered. Discovery had just been started. Counsel for the
intervening petitioners had indicated that he would not ask
for any delay in the expedited trial.
In Wolpe v. Poretsky, 144 F.2d 505 (D.C.Cir. 1944), in-
tervention was permitted even after judgment in order to
permit an adjoining property owner to appeal in a suit
brought to enjoin enforcement of a zoning order which
affected the value of adjoining property, and the Zoning
Commission had decided not to appeal from an adverse
judgment of the District Court.
We also note that without permitting the neighboring
property owners to intervene and protect their property
rights, the District Judge in his Memorandum Opinion
commented on their conduct, as well as that of the public
officials who are the defendants, stating:
The records of the hearings before the Commission
and the Council are a sad display of bigotry, intoler-
ance, and selfishness at its worst. With a great, but
totally hypocritical, show of piety, public officials and
neighboring property owners pretended that to develop
groups of dwellings would only create new ghettos
and that acceptable minority housing can only be ob-
tained by building or buying individual houses
throughout the city, or better still, by going out into
the suburbs or rural areas beyond the city. The evi-
dence in this ease leaves no doubt that the actions and
attitudes which have created segregation in Toledo are
so strong and so persistent that only very positve
court action can change the present housing patterns.
(380 F.Supp. at 231)
35a
Thus the Mayor of Toledo, the members of the City
Council and the Plan Commission are all tarred with ‘‘bi-
gotry, intolerance, and selfishness at its worst.’’ The public
officials and the neighboring property owners who were
attempting to protect their properties from serious dimi-
nution in value were branded as hypocrites feigning a
show of piety.
Rule 24(a) requires that the applicant claim an interest
relating to the property or transaction which is the subject
of the action.
The change in zoning was from lots of 20,000 square feet
with 100 feet frontage, to lots of only 6,000 square feet.
This would permit the construction of fifty low cost homes
in a neighborhood where homes costing from $75,000 to
$100,000 have been built. The motion to intervene alleges
facts which have not been contradicted that the change in
the zoning law will result in a serious and substantial di-
minution of value of the properties in the Ragan Woods
Subdivision.
We look to the law of Ohio for guidance as to the rights
of property owners who have purchased and developed
their properties relying on existing zoning ordinances.
Revised Code of Ohio § 713.13 provides:
No person shall erect, construct, alter, repair, or
maintain any building or structure or use any land
in violation of any zoning ordinance or regulation
enacted pursuant to sections 713.06 to 713.12, inclusive,
of the Revised Code, or Section 3 vf Article XVIII,
Ohio Constitution. In the event of any such violation,
or imminent threat thereof, the municipal corporation,
or the owner of any contiguous or neighboring prop-
erty who would be especially damaged by such viola-
tion, in addition to any other remedies provided by
law, may institute a suit for injunction to prevent or
terminate such violation.
36a
It will be noted that this statute grants to contiguous or
neighboring property owners the right to institute a suit
for injunction to prevent not only a violation but also a
threatened violation.
The present suit in the District Court was not only a
threatened violation but also it has actually resulted in a
nullification of the zoning ordinance on which the property
owners relied in the purchase and development of their
properties.
Even prior to the enactment of Revised Code of Ohio
§ 713.13 the Ohio courts had upheld the right of a property
owner to bring a suit to enjoin the erection of a structure
in violation of a zoning ordinance.
In Pritz v. Messer, 112 Ohio St. 628 (1925), the Supreme
Court of Ohio, in an opinion written by Judge Florence
Allen, who later was appointed to our Court, held:
A property owner, residing in a municipality in
which a valid zoning ordinance is in full force and
effect, has legal capacity to apply for an injunction
against the erection of an apartment building upon a
lot contiguous to her real property, upon the ground
that the proposed structure will violate the zoning
ordinance. (Syl. 3)
In Rosenberg v. Mehl, 37 Ohio App. 95 (1930), the
Court held:
In landowner’s suit to have zoning ordinance de-
clared unconstitutional, court abused its discretion in
overruling contiguous property owner’s motion to be
made party defendant... . (Syl. 2)
The Court said at page 99:
If the court of common pleas should grant the relief
asked for, it would certainly deprive the plaintiff in
error Rosenberg of his rights declared under the de-
cision in the case of Pritz v. Messer. He would be
37a
barred from prosecuting an injunction to enforce the
observance of the zoning laws as existing under the
ordinances of the city, as this would mean an injunc-
tion against the carrying out of a judgment of a court
of record, which judgment would be determinative of
facts giving rise to plaintiff in error’s cause of action.
(Id. at 99-100)
Revised Code of Ohio § 713.13, enacted subsequent to
Pritz and Rosenberg, extended the coverage from contigu-
ous to neighboring property owners.
So, in the present case, like Rosenberg, the denial of the
motion to intervene has barred the property owners ‘‘from
prosecuting an injunction to enforce the observance of the
zoning laws as existing under the ordinances of the city.
9?
It is interesting to note that the Court of Appeals for
the District of Columbia, in Wolpe v. Poretsky, 144 F.2d
505 (D.C. Cir.) cert. denied, 323 U.S. 777 (1944), cited
Rosenberg as authority, in footnote 4. The Court held:
Rule 24(a) of the Federal Rules of Civil Procedure
28 U.S.C.A. following section 723c, provides for in-
tervention of right ‘‘upon timely application * * *
when the representation of the applicant’s interest by
existing parties is or may be inadequate and the appli-
cant is or may be bound by a judgment in the action;’’
{italics supplied]. It seems clear that a judgment
which declares a zoning order to be void would bind
adjoining property owners to the event of taking away
their statutory right to an independent action based
on the order. Otherwise, adjoining property owners
could relitigate the issues in the case any time the
plaintiff began construction, on the theory that their
right to bring an independent action was not con-
cluded by the decree. (Id. at 507)
38a
As previously stated in Wolpe, the intervention was
allowed after judgment so that the intervenor could appeal
from a judgment from which the Zoning Commission
should have appealed.
In our opinion the decisions of the Ohio courts in Pritz
and Rosenberg and of the Court of Appeals for the District
of Columbia in Wolpe, can further be justified on the
ground that intervention was necessary to accord the prop-
erty owners due process of law guaranteed by the Fifth
Amendment.
In Armstrong v. Manzo, 380 U.S. 545, 552 (1965), Mr.
Justice Stewart, who wrote the opinion for the Court,
stated:
A fundamental requirement of due process is ‘‘the
_ opportunity to be heard.’’ Grannis v. Ordean, 234
U.S. 385, 394. It is an opportunity which must be
granted at a meaningful time and in a meaningful
manner.
It is next contended that the property owners would be
adequately represented by the Law Director and his assist-
ants who were representing the City of Toledo, the Mayor,
the City Council, and the Plan Commission. We disagree.
The municipal defendants were charged with main-
taining a segregated city, and with racial bigotry, bias,
hypocrisy, and with discrimination against Negroes.
There was no proof that race had anything to do with
the adoption of the existing comprehensive zoning ordi-
nanee in effect at the present time. The plaintiffs were
claiming that because of the conduct of the officials they
were entitled to have the area rezoned.
The property owners, on the other hand, were interested
solely in protecting the values of their own property which
they did not want to be diminished by a change in the
zoning.
39a
The municipal defendants had enough to do to defend
themselves against the charges leveled against them by
the plaintiffs. They do not have the same interest in pro-
tecting the values of the homeowners’ properties as do the
homeowners themselves.
The defendants, City of Toledo, et al., filed in the Dis-
trict Court a memorandum in support of the motion to
intervene. They gave as the reason:
... [T]he interests of the Intervenor-Defendants may
well be different if not inconsistent with the interests
of the Defendants, City of Toledo, et al, and therefore
their interests may not be adequately represented by
the present defendants.
This was plain notice to the District Judge that the at-
torneys for the City of Toledo, et al., did not want to repre-
sent the property owners; that the interests of their
clients may well be different, if not inconsistent, with the
interests of the property owners; and that, therefore, their
interests may not be adequately represented.
It is not understandable that the District Judge under
these circumstances would deny the motion to intervene
when he was advised of a conflict of interest, which would
have made it unethical for the City Attorneys to represent
the property owners without their consent. Canons of Pro-
fessional Ethics of American Bar Ass’n, No. 6.
The City’s Attorneys already had their hands full in
representing the Plan Commission. The staff of the Plan
Commission was co-operating with Skillken, e¢ al., and did
not at first disclose to the Plan Commission the fact that
the Skillken proposal was a TMHA Housing Project.
Under these circumstances we do not indulge in the pre-
‘sumption, suggested by plaintiffs, that the City, et al.,
would adequately represent the property owners.
Reliance on our decision in Woodland Market Realty
Co. v. City of Cleveland, 426 F.2d 955 (6th Cir. 1970), is
40a
misplaced. In Woodland property was condemned for ur-
ban renewal and a company owning a ieasehold interest
in the neighborhood claimed to be damaged because its
customers had been removed. Its leasehold interest in the
land remained intact.
In the present case the City of Toledo would not have
any right to change the existing zoning ordinance after
property owners had purchased their property relying on
it, without first resorting to appropriate procedures. As we
will point out later, neither did the District Judge, in at-
tempting to exercise legislative functions, have any such
right.
IL.
The City of Toledo is a municipal corporation with
Home Rule Powers of self-government conferred on it by
Article XVII § 3 of the Constitution of Ohio. These powers
are defined in its Charter which grants full power to the
City to pass such ordinances as are expedient for main-
taining and promoting the peace, good government and
welfare of the City.
The zoning ordinance is codified in Chapter 9 of the
Toledo Municipal Code, and it divides the City ‘‘into dis-
tricts in accordance with a comprehensive plan for the
purpose of limiting and regulating the height, bulk and
location of buildings, set back building lines, area and di-
mensions of yards and other open spaces, and the use of
buildings and other structures and of premises in such
zones or districts, ... all of which is done in the interest
of the public health, safety, convenience or general
welfare.’’ ,
The Toledo ordinance requires notice to be given to the
owners of adjoining, adjacent and neighboring land of any
hearings on rezoning.
The hearings on the preliminary platting were conducted
before the Plan Commission, and hearings on the rezoning
4la
were conducted before the City Council. Property owners
from the areas of all of the three projects attended en
masse and vigorously protested. They were all permitted
to be heard. Skillken’s attorney also attended and pre-
sented his views in favor of the platting and the rezoning.
No representative of TMHA appeared at any of the
hearings before the Plan Commission or the City Council
to support the rezoning and the platting.
The property owners voiced their objection to all three
projects on the ground that the projects would seriously
depreciate the value of their homes. Objection to the State-
line Road project was made also on the grounds of poor
soil conditions and flooding.
The Plan Commission disapproved of the preliminary
platting of the two projects. The City Council, by Resolu-
tion 1-74, rejected the rezoning of the Heatherdowns
project.
The reasoning for the disapproval of the preliminary
platting by the Plan Commission and for the rejection of
the rezoning of the Heatherdowns site by the City Council
is set forth at length in the transcripts of hearings before
those bodies and in the testimony by way of deposition of
Stratman Cooke, a member of the Commission and now
its Chairman. Chairman Cooke is a Negro. The action of
the Commission was by a unanimous vote.
These reasons were substantially as follows:
1— The TMHA projects in recent years had been a dis-
mal failure. Projects had been started and were not com-
pleted. Projects which had been completed were unoccu-
pied. Evidence of these facts was proffered when the Court
rejected it as irrelevant.
2— The clustering of forty to fifty units of low-income
housing was not the proper approach for the entire city
as it created an isolated neighborhood within a neighbor-
42a
hood. The Commission suggested that developers be re-
quired to include some low-income homes in each new de-
velopment. They also suggested an extension of TMHA’s
leased housing project and the building of public housing
on scattered individual sites to distribute low-income hous-
ing throughout Toledo.
3— TMHA has neglected to meet with residents in the
area of the proposed projects to explain their virtues annd
to endeavor to overcome any resistance.
4— The proposed projects would not produce orderly
development of the land to obtain harmonious and stable
neighborhoods, and were not in the. best interests of the
public.
5— There was doubt about the adequacy of the Stateline
site based on reports of neighbors as to past flooding and
landfill problems.
All of these matters were required to be considered by
the members of the Plan Commission and the City Council
in the performance of their duty. None of them has any
racial overtones.
It is also significant that neither Skillken or TMHA en-
deavored to meet with either the Plan Commission or the
City Council after the rejection to work out a better and
more acceptable plan for public housing.
We_note that the District Judge passed upon evidence
consideved by the Plan Commission and the City Council,
but he reached a different conclusion. The trouble is that
he was not a member of either body, and further, he had
no appellate jurisdiction to review their decisions.
The District Judge held that Resolution 1-74 enacted by
City Council, denying rezoning of the Heatherdowns tract,
was illegal and void. For the reasons stated in in this
opinion we disagree.
43a
But assuming that Resolution 1-74, denying rezoning,
was invalid, it would follow that the valid existing zoning
ordinance requiring 20,000-square foot lots with 100-foot
frontage, would remain in full force and effect. This result,
however, did not bother the District Judge. He simply
ordered the City Council to pass another ordinance to
rezone the tract to 9,000-square foot fots. The figure of
9,000 square feet was used rather than the figure of 6,000,
contained in the written petition for rezoning, because
counsel for Skillken had indicated that the higher figure
was acceptable.
It is clear that in ordering the members of the City
Council to pass a new zoning ordinance, the District Judge
was exercising legislative powers which he did not possess.
We commented on this in Mahaley v. Cuyahoga Metro-
politan Housing Authority, 500 F.2d 1087, 1092 (6th Cir.
1974), cert. denied. 43 U.S.L.W. 3088 Jan. 14, 1975, as
follows:
In oral argument one of counsel for appellees even
went so far as to suggest that the single Judge could
order individual councilmen to vote for a cooperation
agreement. While this course of action might have
been a way to order relief without exceeding juris-
dictional bounds, we think such action would have been
highly improper, Quite simply, it would have been a
violation of the separation of powers with the court
acting as a legislature.
The Supreme Court in Griswold v. Connecticut, 381 U.S.
479 at 482 (1965), used much stronger language than we
did in Mahaley, supra, Mr. Justice Douglas, speaking for
the Court, said:
We do not sit as a super-legislature to determine the
wisdom, need, and propriety of laws that touch eco-
nomic problems, business affairs, or social conditions.
a
r&
With equal propriety . ...abers of Congress could be
sued individually and charged with racism, hypocrisy, and
bigotry and ordered by a Court to enact new legislation
increasing economic and social programs for minorities.
Federal Courts do have jurisdiction and power to pass
upon the constitutionality of Acts of Congress, but we are
not aware of any decision extending this power in Federal
Courts to order Congress to enact legislation. To do so
would constitute encroachment upon the functions of a
legislative body and would violate the time-honored prin-
ciple of separation of powers of the three great depart-
ments of our Government. This principle is equally appli-
cable to the power of a Federal Judge to order a state
legislative body to enact legislation. The enactment of
legislation is not a ministerial function subject to control
by mandamus, prohibitio ~ the injunctive powers of a
court.
ITT.
Toledo’s population in 1970 was 329,068, of whom 86%
were white, 14% were black, and 1% other minority groups.
28% of the population, or 35,000 households, were eligible
for public housing; 21% of those eligible were black, and
79% were white. Thus there are more than three times as
many whites who need public housing than there are blacks
needing housing.
The District Judge found that Toledo was a racially
segregated city, with public officials who were bigots. He
determined that the action of the Plan Commission and of
the City Council was racially motivated. He also paid his
respects to TMHA, stating:
This example of bureaucratic ducking ‘s typical of
TMHA’s pusillanimous approach to its responsibilities.
The fact is that black families are living in virtually all
parts of Toledo. This was testified to on cross-examination
45a
of plaintiff’s witness, Emerson Cole, a black member of
Ohio Civil Rights Commission, who had lived in Toledo
for forty-three years, and who testified as follows:
Q. It is a fact, is it not, that there are black people
living in virtually every area of the city of Toledo?
A. Yes. (88a)
Mr. Cole further testified that Toledo had set up a Board
of Community Relations, dedicated to resolve problems
of housing discrimination, which Board works with him.
(88a).
This can hardly be the work of bigoted public officials.
The fact that some black people, but not all, are concen-
trated in a certain area of the city, is no proof of official
discrimination, and the District Judge was in error in in-
ferring it.
Nor can the municipal defendants be held responsible
for private discrimination or for discrimination by other
bodies, or for the location of public housing. The present
cooperation agreement did not give the defendants any
voice in the selection of sites for housing.
Negro families have not been excluded from the Ragan
Woods subdivision, nor have other minorities who have the
money to purchase property there. In Ragan Woods there
are also first and second generation Americans of Greek,
Italian, Polish. Hungarian, Czechoslovakian, Iris, English,
Swedish, and Scottish descent.
The District Court erred in applying the compelling in-
terest test, rather than a rational basis test, in de\ermin-
ing whether Toledw’s iegislation was imvalid. The -uling
conflicted with our decision in Mahaley v. Cuyahoga Metro-
politan Housing Authority, supra.
*Even applying the compelling interest test, it is clear that
Toledo had a valid public interest to protect its zoning laws from
wholesale nullification, a result which would disrupt the entire
46a
Lindsey v. Normet, 405 U.S. 56 (1972), holds that no one
has a constitutional right to adequate public housing. We
rely also on Citizens Comm. for Faraday Wood v. Lind-
say, 362 F.Supp. 651 (S.D.N.Y. 1973), which has since been
affirmed by the Second Circuit Court of Appeals, 5u7 F.2d
1065 (2d Cir. 1974).
In Faraday Wood Judge Lumbard stated:
However, even if we adopted the standards of these
cases the plaintiffs have failed to show that the city
acted in bad faith. AMIH knew that this proposal had
to be approved by the New York City Board of Esti-
mate before the parties could enter into a binding con-
tract. The Board of Estimate is a political body so
AMIH knew that it would consider expression of
opinion by members of the public. It seems to us that
it is a proper exercise of discretion for HDA to ter-
minate a project when it feels that the Board of Esti-
mate is unlikely to approve it because of public pro-
test and political considerations. (507 F.2d at 1072)
In Palmer v. Thompson, 403 U.S. 217 (1971), the Court
held that a neutral policy which had a greater impact on
a minority group was not invalid.
The zoning iaws in the present case are not inherently
suspect. To apply the compelling interest test would vir-
tually invalidate all forms of state legislation where peo-
ple are affected differently.
The compelling interest rule was rejected in Village of
Belle Terre v. Boraas, 416 U.S. 1 (1974); San Antonio
School Dist. v. Rodriguez, 411 U.S. 1 (1973); James v.
community and would inflict heavy losses on many innocent people.
Such zoning laws, enacted under the police power, ‘‘are essential
to orderly community development.’’ Forest City Enterprises, Inc.
v. Eastlake, 41 Ohio St.2d 187, 189, cert. granted Oct. 14, 1975,
44 U.S.L.W. 3222.
47a
Valtierra, 402 U.S. 137, 142 (1971) ; Dandridge v. Williams,
397 U.S. 471 (1970); McGowan v. Maryland, 366 U.S. 420
(1961); Citizens Comm. for Faraday Wood v. Lindsay,
supra; Ranjel v. City of Lansing, 417 F.2d 321 (6th Cir.
1969), cert. denied, 397 U.S. 980 (1969), rehearing denied,
397 U.S. 1059 (1970).
It is significant that no attack has been made here on
Toledo’s comprehensive zoning ordinance. It was neutral
legislation enacted long before the controversy in the pres-
ent case arose.
The constitutionality of Ohio’s zoning laws was first
upheld by the Supreme Court in Euclid v. Ambler Realty
Co., 272 U.S. 365 (1926). Euclid was followed in Berman
v. Parker, 348 U.S. 26 (1965), and most recently in Village
of Belle Terre v. Boraas, 416 U.S. 1 (1974). In Belle Terre
Mr. Justice Douglas, who wrote the opinion for the Court,
stated:
We deal with economic and social legislation where
legislatures have historically drawn lines which we
respect against the charge of violation of the Eual
Protection Clause if the law be ‘‘ ‘reasonable not
arbitrary’ ’’ (quoting Royster Guano Co. v. Virginia,
253 U.S. 412, 415) and bears ‘‘a rational relationship
to a [permissible] state objective.’’ Reed v. Reed, 401
US. 71, 76. (p. 8)
In James v. Valtierra, 402 U.S. 137 (1971), the Supreme
Court upheld California’s requirement of referendum ap-
proval by the voters of low cost housing. Cf. Ranjel v. City
of Lansing, 417 F.2d 321 (6th Cir. 1969), cert. denied, 397
U.S. 980, rehearing denied, 397 U.S. 1059 (1970), for refer-
endum on rezoning.
The entire complaint here is that the legislative body
of Toledo refused to rezone.
48a
In Ohio zoning is a legislative function. Forest City En-
terprises, Inc. v. Eastlike, 41 Ohio St.2d 187 (1975), cert.
granted Oct. 14, 1975, 44 U.S.L.W. 3222.
In our opinion there was a rational basis for the enact-
ment of Toledo’s zoning ordinance and also for the actions
of the Plan Commission in denying platting and of the
City Council in rejecting rezoning of the Heatherdowns
project.
Recently the Supreme Court held that plaintiffs bringing
suits to compel housing in municipalities must have stand-
ing to sue. Warth v. Seldin, U.S. —— (No. 73-2024,
decided June 25, 1975, 43 U.S.L.W. 4906).
Under date of October 14, 1975 the Supreme Court
granted certiorari in the case of Forest City Enterprises,
Inc. v. Eastlake, supra, which invalidated, for violation
of the Fourteenth Amendment, a charter provision of a
municipality requiring land use changes to be ratified by
the voters in a city-wide election.
Although the complaint in this case related only to the
action of the Plan Commission and the City Council in re-
spect to three sites which Sillken desired to develop, the
broad order entered by the District Judge subsequent to
his published opinion converted the nature of the case to
that of an action to desegregate the residential area of the
entire city of Toledo, and, like the procedure in a school
desegregation case, the municipal defendants were ordered
to submit to the Court within ninety days a comprehensive
plan for desegregation of housing.
Under this broad order all zoning laws in conflict there-
with would be invalidated. Low cost public housing could
move into the most exclusive neighborhoods in the metro-
politan area and property values would be slaughtered.
Innocent people who labored hard all of their lives and
saved their money to purchase homes in nice residential
neighborhoods, and who never discriminated against any-
49a
one, would be faced with a total change in their neighbor-
hoods, with the values of their properties slashed. All of
this would be accomplished simply by an order of a Federal
Judge, and at the expense of the taxpayers.
It is submitted that Congress never vested any such
power in Federal Judges.
Members of the City Council did not cause nor create
the concentration of black people in Toledo, and they are
under no legal obligation to deconcentrate the area or to
change the zoning laws to bring about deconcentration.
Nor are the city officials responsible for private dis-
crimination, most of which, we believe, occurred prior to
Ohio’s Civil Rights Act, Ohio Rev. Code §4112.01 et seq.,
and the decision of the Supreme Court in Jones v. Alfred
H. Mayer Co., 392 U.S. 409 (1968), which afford adequate
remedies for private racial discrimination in housing.
It was argued that housing units were constructed in
Toledo in the areas of racial concentration. It should be
remembered that ever since the 1968 co-operation agree-
ment the location of housing units was the sole province
of TMHA.
Nor do we regard the refusal of the City Council to re-
zone and the Plan Commission to replat, as obstructing
the rights of minorities to housing, upon which an infer-
ence of di
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