# Petition — Joseph Skilken & Co. v. City of Toledo > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2170%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 - **Citation:** 426 U.S. 945 ## Text . 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2170%3A1. Public record. Not legal advice.