Appendix — D'Angelo v. Petroleos Mexicanos

Supreme Court, U. S.

FILED :

| = NOV 28 1977

IN THE

MICHAEL RODAK, JR., CLERK

SUPREME COURT OF THE UNITED STATES

October Term, 1977

no.@ @ 72759

Whitman Area Improvement Council,

Alice Moore, Fred Druding, and

All Members of the Whitman Area

Improvement Council and its

Officers, Agents, Servants,

Representatives and Employees

and All Other Persons Acting in

Consort with Them or Participating

in their Aid,

Petitioners

Ve

Resident Advisory Board, et al.,

Respondents

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Joseph M. Gindhart

2015 Land Title Building

Phila., Pa. 19110

Counsel for Petitioners

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

2 NT

TABLE OF CONTENTS RESIDENT ADVISORY BOARD, et al. : CIVIL ACTION

Page a v. :

FRANK L. RIZZO, et al. : NO. 71-1575

Opinion of the United "

States District

Court for the MEMORANDUM AND ORDER

Eastern District of

Pennsylvania... cecceee 1-D.C. BRODERICK, J. November _5~ , 1976.

Opinion of the United , The plaintiffs in this action have brought suit al-

States Court of

Appeals for the leging that various defendants have violated the Civil Rights

Third Circuit....----+++- 1-C.A. Acts of 1866 and 1871, 42 U.S.C. §§1981, 1982, 1983, 1985 and

1986; the Civil Rights Act of 1964, 42 U.S.C. §2000(d); Title

VIII of the Civil Rights Act of 1968, 42 U.S.C. §3601 et seq.,

as well as the Fifth, Thirteenth and Fourteenth Amendments to

’ the United States Constitution. The plaintiffs commenced this

action in 1971 seeking both injunctive relief and damages against

the defendants in connection with their actions or inactions

in the proposed construction of a low income public housing

project in a White residential area, The Whitman Park Townhouse

. Project was to be built in South Philadelphia on a site bounded

by Porter Street to the north, Oregon Avenue to the south, Front

Street to the east, and midway between Second Street and Han-

e cock on the west. (Exhibit P-168). Plaintiffs contend that the

failure to build this proposed project violates their rights under

the statutes and constitutional amendments enumerated above.

Prior to trial, the plaintiffs, with the permission of the

- + +Court, dropped all damage claims against the defendants and

now seek only injunctive relief. The plaintiffs are asking

this Court to enter a sweeping decree which would order the

defendants, their officers, agents, employees and any and

all other persons acting in concert or participation with

them to take all necessary steps to build the Whitman Park

Townhouse Project as planned and establish an affirmative

program to insure that the occupancy of the Whitman Park

Townhouse Project is racially integrated; declare null and

void any and all agreements and resolutions which are

dysfunctional to the completion of the Whitman Park Townhouse

Project; permanently enjoin the Department of Housing and

Urban Development (HUD) from dissipating any funds now held

in reserve for the purpose of constructing the Whitman Park

Townhouse Project; order the City of Philadelphia (City),

the Redevelopment Authority of Philadelphia (RDA), the

Philadelphia Housing Authority (PHA), the Philadelphia City

Council, and HUD to appropriate and/or spend any necessary

funds to complete the original Whitman Park Townhouse Project,

made necessary because of the delay resulting from the

defendants' respective unlawful acts; and order the defendants

City, RDA, PHA and HUD, in cooperation with the plaintiffs,

to present to this Court a comprehensive plan which will

remedy the racially segregated public housing system in

Philadelphia by increasing as rapidly as possible the supply

of housing units in non-racially impacted areas of the City

so as to create equal housing opportunities for low income

persons. This plan would, according to the plaintiffs,

include a broad range of alternatives available to the City

for public housing. Finally, the plaintiffs seek from this

Court an order directing the defendants to reimburse

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«”

plaintiffs for all costs and attorneys’ fees arising as a

direct result of this litigation.

This litigation, which was filed in 1971, has

been protracted and vigorously contested by all parties and

encompasses a complex and pr ‘onged procedural history.

Shortly after the suit was filed, this litigation was stayed

by consent of counsel to await the outcome of a suit filed

by the Whitman Area Improvement Council (WAIC) in the Phila-

delphia Court of Common Pleas. In that lawsuit WAIC

attempted, unousccesfully, to halt construction of the

Whitman Park Townhouse Project through the judicial process.

After a trial in state court which lasted from August 4,

1971 through September 6, 1971, the case was dismissed as

moot on March 20, 1974. In 1972, after it became apparent

that the Common Pleas Court suit would not dispose of the

issues raised in this Federal action, the parties began a

discovery process which required constant intervention by

this Court. The record in this case now contains over 450

‘docket entries. The parties, during the course of this

litigation, participated in protracted discussions in an

effort to bring about settlement of this litigation, and

although it was generally canceded that additional housing

was badly meeded in Philadelphia, a settlement never

materialized. The non-jury trial of this case commenced on

October 7, 1975 and consumed 57 days, finally ending on

January 21, 1976. All parties have now filed with the

Court proposed findings of fact and conclusions of law with

1. WAIC, et al. v. Multicon, et al., No. 1187, July Tern,

1971 C.P. Co.

briefs in support thereof, and the matter is now ready for

decision.

The Parties.

The plaintiffs in this case are individuals

claiming to represent a class defined as "all low income

minority persons residing in the City of F!..ladelphia who,

by virtue of their race, are unable to secure decent, safe

and sanitary housing, outside of areas of minority concentra-

tion, and who would be eligible to reside in the Whitman

Park Townhouse Project."

plaintiff in the plaintiff's Corrected Second Amended and

The only individual named as a

Supplemental Complaint to testify at trial was Ms. Jean

Thomas. Ms. Thomas resides in a scattered site house owned

by PHA at 5024 Brown Street in Philadelphia, a predominantly

Black area of the City. (N.T. 43-77, 43-78). Prior to

moving to the Brown Street address in June of 1971, Ms.

Thomas lived at 3855 Mount Vernon Street in Philadelphia, a

scattered site house owned by PHA and located in a predomin-

antly Black neighborhood. (N.T. 43-77). Ms. Thomas moved

from her home om Mount Vernon Street because of che bad

condition of the house.? The most serious problem in this

house was that water constantly leaked into her basement up

to the fifth or sixth step leading to the first floor. This

basement water would become stagnant, creating a health

hazard for her and her famtly. (N.T. 43-77). Her present

2. The case was certified by the Court as a class action

on behalf of the above defined class on May 8, 1975.

3. Ms. Thomas testified that PHA told her that her house

on Mount Vernon Street was unfit for human habitation in

1968, after she had a serious problem with water in her

basement. (N.T. 43-95 , 43-96). Apparently, the house

had been constructed over a creek. (N.T. 43-96, 43-102).

scattered site house also has water in its basement which

has destroyed all her personal belongings stored in the

basement (N.T. 43-78, 43-79). In addition, the electric

wiring is in poor repair and Ms. Thomas has difficulty heating

her second floor front bedroom. (N.T. 43-78). As a result

of these problems, Ms. Thomas asked PHA to find her another

house in 1971 and was placed by PHA on their waiting list.

(N.T. 43-79, 43-83). Ms. Thomas testified that she "would

have loved" to live in the proposed Whitman Park Townhouse

Project. (N.T. 43-80).*

Additionally, there are two organizational

plaintiffs in the lawsuit, the Resident Advisory Board (RAB)

and the Housing Task Force of the Urban Coalition (Housing

Task Force). Both organizations have sued the defendants on

behalf of themselves and their members. Ms. Nellie Reynolds

is the president and chairperson of RAB and testified on

behalf of RAB. (N.T. 43-6). RAB is an organization whose

membership includes all those currently living in public

housing in the City of Philadelphia. (N.T. 43-6, 43-8, 43-9,

43-10). Currently, there are approximately 120,000 public

housing tenants in the City of Philadelphia. (N.T. 43-6).

RAB and PHA have signed 4 memorandum of understanding which

enables RAB to effectively advocate the position of all

tenants of public housing and to act as a liaison between

4. Ms. Thomas never requested a transfer to any particular

location, but testified that she wants to live anywhere

where it is decent for her and her family. (N.T. 43-83,

43-86, 43-97). Ms. Thomas stated that the only PHA

procedure that she was aware of for obtaining other hous-

ing was to request a transfer. PHA would then try to

find a suitable house for the applicant.

the tenants, PHA and HUD.” (N.T. 43-8, 43-11, 43-12). All

tenants of public housing in Philadelphia are eligible to

become members of the Board.

(N.T. 43-8). Also, those who

are eligible to become tenants of public housing, regardless

of whether they have applied for amiare on the waiting list

for public housing, are eligible to become members of Ras. ©

(N.T. 43-10). Although people on the waiting list have no

vote in RAB elections, RAB has undertaken to represent those

on the public housing waiting list.

(N.T. 43-65, 43-66).

Ms. Reynolds personally has lived in public housing for 35

years and she currently lives in the Johnson Homes project

at 2630-D Norris Drive, Philadelphia. (N.T. 43-6, 43-32).

Ms. Reynolds testified that she felt that the Johnson Homes

project needed modernizing and that if Whitman were built

as proposed, she would consider asking to transfer to that

project.

the Urban Coalition.

(N.T. 43-34, 43-35, 43-75, 43-76).

The Housing Task Force is a semiautonomous arm of

(N.T. 44-101). The Urban Coalition is

described as a partnership of business, labor and community

people who have joined together for the purpose of bringing

the varied resources of the commmity together to attack

various urban ills, particularly those of minority groups

living in the inner city.

(N.T. 44-100). The membership

5.

RAB is concerned with public tenant problems in connection with

admission, PHA policy changes, security and police

protection, maintenance and the overall condition of

public housing in Philadelphia. (N.T. 43-11, 43-12).

Each public housing development elects a representative,

and an alternate to a committee, which committee elects

the Board. (N.T. 43-6). The Board is 95% Black.

(N.T. 43-11).

of the Housing Task Force is chosen by the Execu-ive Committee

of the Board of Directors of the Urban Coalition 4d the

Housing Task Force is empowered to make decisions in connection

with housing in Philadelphia without the approval of the

Urban Coalition. (N.T. 44-101). There is no requirement

that members of the Housing Task Force be either tenants of

PHA or eligible for public housing. (N.T. 44-126, 44-127).

The Housing Task Force is concerned mainly with improving

housing conditions for lower income people, and is therefore

concerned wtth the availability of public housing for those

low income groups. (N.T. 44-106, 44-107, 44-111). The

Housing Task Force is also concerned with bringing i dustrial-

ized housing to Philadelphia and asked the Urban Coalition

to become involved in industrial housing. (N.T. 44-111).

Therefore, at the time that plans were submitted for public

housing on the Whitman site, the Urban Coalition, together

with RAB, submitted a proposal to locate industrial housing

on the site. The combined RAB and Housing Task Force proposal

was rejected. (N.T. 44-111, 44-112). At the time this

lawsuit was filed in 1971, of the fifteen members of the

Housing Task Force, three members were living in public

housing or eligible therefore. (N.T. 44-103). Another newer

member of the Housing Task Force was a tenant in public

housing until 1975. (N.T. 44-105). As of this date, at

least one member of the Housing Task Force is eligible to

live in public housing. (N.T. 44-129, 44-132).

The original defendants who were joined when this

suit was filed were the then Mayor James H. J. Tate, the

City Managing Director Fred Corleto, Multicon Properties,

Inc. and Multicon Construction Corporation,’ who were to be

the builders of the Whitman Park Townhouse Project. The

local community group opposing the Whitman project, WAIC,

was permitted,

pursuant to their motion, to intervene as a defendant in the

lawsuit. WAIC then joined as third party defendants PHA,

RDA and HUD. PHA is created by state statute” and is composed

of five members, two of whom are chosen by the Mayor of

Philadelphia, two by the Controller of the City of Philadel-

phia, with the four appointed members selecting the fifth. ?

The members serve for staggered five year terme. -(N.T. 1-33,

1-34). RDA is also a creature of state statute!” and all

its members are appointed by the Mayor of Philadelphia.

qi.t. 1-70).24

4 In 1972, the new Mayor, Frank Rizzo, and the new

Managing Director, Hillel Levinson, were joined individually

as defendants and were substituted in their official

capacitiefor their predecessors in office, Mayor Tate and

Managing Director Corleto. The City of Philadelphia was

later added as a defendant, as was RDA. Finally, after

extensive discovery had been conducted, PHA and HUD were

joined by the plaintiffs as defendants. The Philadelphia

City Council was joined as a defendant in the event the

¥

7. Hereinafter, Multicon Properties, Inc. and Multicon

Construction Corporation will be referred to jointly as

Multicon.

8. 35 P.S. §1541 et. seq.

9. 35 P.S. §1545(b) (1).

10. 35 P.S. §1701 et. seq.

ll. 35 P.S. §1705.

Council was needed to insure that the Court could render

appropriate relief.

Facts.

| On June 4, 1956, PHA conducted a public hearing at

which various sites were considered for the development of

low income housing projects. Citizens and groupe from the

Whitman area were in attendance at this PHA hearing, some

nineteen of which testified and expressed their views on

public housing. (N.T. 2-22). After the hearing, PHA passed

a resolution selecting a site at Front and Oregon in ;

Philadelphia for the Whitman project. (N.T. 1-81). Also

in 1956, the Whitman site was approved as a public housing

site by the Philadelphia City Planning Commission. (N.T. 1-84).

On February 18, 1957, HUD gave tentative approval to the

Whitman site for the development of a conventional public

housing project. (N.T. 1-84). Am annual contributions

contract was executed by HUD on December 6, 1957, in the

amount of $8,607,793, approving a development program for

Whitman of 476 units and authorizing PHA to begin planning

the Whitman project. (N.T. 1-85). Drawings for a high rise

public housing project at the Whitman site were submitted to

HUD by PHA and were approved by HUD on August 28, 1959.

(N.T. 1-85). Condemnation and acquisition of the site by

PHA took place during 1959 and 1960, culminating with the

award of demolition contracts on June 26, 1960. This action

had the effect of removing some of the Black families who

lived on the Whitman site. (N.T. 31-147, 31-148).

On January 12, 1961, a second public hearing was

conducted by PHA for the purpose of adding two small parcels

of land to the Whitman site, which addition was approved by renewal. (N.T. 2-13). The total amount of all governmental

np Mt pelo Local opposition developed in funds expended chrough RDA in the Whitman Urban Renewal Area

reac to i) of ri hous from through Apri

gg ing high rise public ing in : 1963 1 30, 1975 has been $11,178,210.43;

WAIC was formed to oppose the Whitman project as ' of this amount $6,682,686.92 has constituted federal funds

planned. (N.T. 1-85, 2-23). .

from HUD. (N.T. 2-21). RDA, with federal funds from HUD

On October 27, 1963, RDA executed an application

to establish the Whitman Urban Renewal Area. (N.T. 2-10).

The application sought a federal grant of $3,311,024 and a

temporary loan of $5,545,524 (totaling $8,856,548) to carry

on the land acquisition, relocation of site residents,

and from other sources, condemmed and acquired a total of

101 properties and parcels of land in the Whitman Urban

Renewal Area at a total estimated cost of $1,550,075.

Between 1969 and 1973, 109 new homes were privately developed

Gembtbitinh ak ctns thncnenee, Hie tain. et and sold for between $25,000 and $30,000, all of which were

‘ eligible for FHA-insured mortgates. (N.T. 2-16). There was

no opposition by WAIC to these privately developed homes.

(N.T. 2-20). From January 1, 1966 until May 1, 1975,

Whitman residents, through RDA and with the aid of federal

funds, have obtained $2,718,278 in loans and grants to

rehabilitate their homes. (N.T. 2-20). A total of 1,123

households have received furus from this program. Over

one-fourth of all the households in the Whitman area have

rehabilitation or conservation required for the proposed

Whitman Urban Renewal Area. (N.T. 2-10, 2-11). The plan

included cleaving 130 homes, none of which were at the

Whitman public housing site, and rehabilitating 2,500

structures. (N.T. 2-11). The Whitman Urban Renewal Plan,

dated October 23, 1963, which included the previously

established Whitman public housing site, contained no height

limitation for public housing within the area. (N.T. 2-11,

2-12). 24 The land use map for the Whitman Urban Renewal

Area provides for public housing as the land use for the

Whitman site and is the only site in the Whitman Urban

Renewal Area designated for public housing. (N.T. 2-13).

In 1963, the estimated racial composition of the Whitman

Urban Renewal Area was 3,373 White families and 94 non-White

benefited from the grant and loan program initiated by

RDA. (N.T. 2-21). Further, urban renewal activites in the

area have included a wide range of activities benefiting the

Whitman area. (N.T. 2-20).

Ih 1964, after opposition by WAIC had developed to

the high-rise design of the proposed Whitman project, @

special Act of Congress was passed, known as the Barrett

families, 21 of which were to be displaced by the urban Amendment. (N.T. 1-85, 20-11).2° Pursuant to the Barrett

Amendment, the design of the proposed Whitman project was

12. —y Bog SA, oo gy in 1964, referred

, plan was amen to provide for low-rise

public housing dwellings. (N.T. 2-$2).

13. The Barrett Amendment is Section 1007 of the Housing and

Urban Development Act of 1964. The Amendment was

introduced by the late South Philadelphia Congressman,

William Barrett.

-10-

eile

changec from high-rise to low-rise construction and RDA purchas-

ed the “hitman site land from PHA for $1,217,679.59 with the

understandiag that the land would be conveyed by RDA to a

developer for construction, and finally deeded back to PHA for

management by it as a low-rise public housing project.

(N.T. 1-85, 1-86, 5-58, 5-59, 20-11). The sale of the land

to RDA resulted in a writedown of the cost of the land and

a change in the zoning of the Whitman site within the Urban

Renewal Area to permit low-rise public housing. (N.T. 5-59).

Such a change in the urban renewal plan was approved by City

Council on September 2, 1964. (N.T. 1-85).44 In May of

‘1967, City Souncil passed an ordinance approving the purchase

of the land from PHA. (N.T. 1-87). Im late 1967, Hartsville

Construction Company was chosen as a developer to build 114

units on the Whitman site. (N.T. 1-87, 5-18). WAIC opposed

certain aspects of the Hartsville plan and Hartsville refused

to execute the contract of sale tendered to it on May 2, 1969.

(N.T. 1-87, 5-18). Because of the opposition by WAIC to

the Hartsville plan, a decision was made to look for a new

developer which would develop its own plan and not use the

old Hartsville plans. (N.T. 5-19). Also, because the

Hartsville plans were not to be used, a “turnkey” developer

was obtained. (N.T. 5-21). A turnkey developer differed

from a conventional housing developer in that the turnkey

developer would purchase the land, hire the architect to

design the project, produce the drawing, set a cost for his

project and then submit his proposal to the Housing

7

14. The cost of the writedown RDA was absorbed in the

urban renewal programs of the City, with the aid of

federal subsidies from HUD. (N.T. 1-86, 5-59).

-12-

Authority. (N.T. 5-22). The Housing Authority, if it

decided te accept a turnkey developer's proposal, would,

after appropriate public hearings and approvals, sign a

contract with the turnkey developer and HUD, which specified

that the turnkey develcper would build the project and upon

completion turn it over to the Housing Authority for the

agreed upon purchase price. The Housing Authority would

manage the project and HUD would provide the necessary

subsidies. (N.T. 5-22, 5-23).

A HUD Equal Opportunity staff review of the Whitman

site was conducted and approval of the site for low income

public housing was recommended on June 4, 1968. The Whitman

site was described as being located in a predominantly

all-White area, conducive in all respects to Equal Opportunity

Housing. (N.T. 1-87). Thereafter, HUD approved the Whitman

site. (N.T. 1-87). The next year HUD esncbtiaties the

Whitman project as a “balance” for the Morton Addition, a

project located in a Black area of Philadelphia. (N.T. 1-88).+>

The Morton Addition has been completed and is now occupied.

(N.T. 2-4).

During the latter part of 1969, PHA and RDA

advertised for turnkey developers for the Whitman site

pursuant to all applicable regulations. Twelve developers

responded, and on April 28, 1970, PHA chose Multicon as the

15. The “balance” concept was part of HUD's site selection

criteria pursuant to Title VI of the 1964 Civil Rights

Act, 42 U.S.C. §2000(d). (N.T. 1-88). HUD Equal

pe | review of the Morton Addition recommended

ya qualified approval of the Morton project conditioned

upon completion of the Whitman project. (N.T. 2-4).

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developer, which choice was approved by HUD on May 20, 1968.

(N.T. 2-7, 2-8). 4° The Multicon proposal was considered

superior to all other proposals because it maintained

existing street patterns and the housing was of the same

design as the other houses in the Whitman area. (N.T. 5-25,

5-26, 5-27, 5-28).1? ‘The Whitman Park Towhouse Project

was unique in design for public housing because each house

was designed with street frontage and a separate entrance

and could be individually plotted on a separate building lot.

(N.T. 5-41, 5-47, 5-62, 5-63, 5-64). This design was in

anticipation of a federal program called Turnkey III, which

called for a lease-purchase agreement pursuant tc which the

public housing tenant could eventually become the owner of

his own home. (N.T. 5-46, 5-48). 18

On July 14, 1970, RDA and Multicon entered into an

agreement of sale to enable Multicon to obtain the land at

Front and Oregon and build the Whitman Park Townhouse Project.

On October 27, 1970, Mayor Tate signed an ordinance which

had been passed by City Council approving Multicon as the

developer of the project. Om October 29, 1970, based upon

16. By RDA Board resolution, a disposal price of $115,000

was set on the land, which represented the reduced

value of the land for the use scheduled in the urban

renewal plan. (N.T. 2-8).

17. The Whitman Park Townhouse Project was not an apartment

style design but was designed as a two story row house

development. (N.T. 5-28, 5-38).

18. Originally, of course, PHA would own and operate the

Whitman Park Townhouse Project. The common areas which

PHA would retain control of after the homes were purchased

Bette housing tenants were kept to a minimum. (N.T.

5-48). Tenants would take on maintenance responsibili-

ties to build up "sweat equity’ to enable them to make

a down payment and eventually to own their homes.

oe

appropriate HUD approval of the project, PHA and Multicon

entered into an agreement of sale whereby Multicon was to

construct 120 townhouses on the Whitman site. (N.T. 2-8,

2-9, 2-10). Om October 30, 1970, RDA conveyed title to the

Whitman Park Townhouse Project site to Multicon.

Prior to the signing of the contracts with Multicon,

WAIC, which was designated as the local citizen participation

unit, for the Whitman Urban Renewal Area, was involved in

numerous meetings and correspondence with RDA, PHA and

Multicon officials. (NT. 2-22, 2-25, 2-26). Om Jume 2, 1970,

a meeting was held in the Whitman community and was

attended by officials from RDA, PHA, Multicon and the Mayor's

office. (N.T. 5-60). The meeting was held to give WAIC an

opportunity to closely review the Multicon plans for the

Whitman Park Townhouse Project. (NT. 5-61). WAIC made

several suggestions in connection with the building materials

to be used in the project and fire safety for the completed

townhouses. (N.T. 2-26, 5-65, 5-66, 5-68). The suggestions

were accepted by those officials in attendance at the meeting

and, after investigation, appropriate changes were made in

the Whitman Park Townhouse Project plans. (N.T. 5-67, 5-68).

Also, the home ownership potential and the advantages thereof

of a public housing development under Turnkey III were

explained to WAIC. (N.T. 5-70, 5-71, 5-85). WAIC officials

stated after the June 2, 1970 meeting that the Whitman Park

Townhouse Project plans “look excellent”, that WAIC was "very

impressed with the plans" and that WAIC felt that the houses

would be “an asset to our community." (N.T. 2-26, 2-27).

On January 28, 1971, the president of WAIC, Alice

Moore, wrote to RDA in connection with the Whitman Park

eGo

Townhouse Project: "We .. . do not feel that all of our

questions have been thoroughly answered." (N.T. 2-32).

On March 22, 1971, two PHA representatives attended a WAIC

meeting to answer commmity questions about the project.

At the same meeting, Fred Druding was elected as the new

president of WAIC and a decision was made to demonstrate the

next morning in opposition to the Whitman Park Townhouse

Project. (N.T. 2-33).

Although a groundbreaking ceremony was conducted

on December 16, 1970, actual construction did not commence

until March of 1971. At 7:30 a.m. on March 23, 1971,

approximately thirty women entered the Whitman site and

gathered around a bulldozer and backhoe, blocking the opera-

tions of the contractor and refusing to leave the area when

requested to do so. (N.T. 2-33, 2-34). Om that same day,

demonstrators at the Whitman site blocked a truck attempting

to make a delivery to the Whitman Park Townhouse Project.

(N.T. 2-34). Again, om March 25, 1971, demonstrators

refused to permit a bulldozer to be operated on the Whitman

site. (N.T. 2-34). As a result of these activities,

Multicon filed a complaint in the Court of Common Please of

Philadelphia County seeking injunctive relief to permit it

to continue with the construction of the Whitman project.

(N.T. 2-34, 3-10, 3-11). Pursuant to the complaint filed by

Multicon, a preliminary injunction was issued on April 2,

1971, enjoining further interference with the construction

of the project. (N.T. 2-35, 3-9, 19-7). Om April 6, 1971,

a meeting was held in the chambers of the Honorable Ned

Hirsch, the Judge assigned to the Multicon case, to determine

whether the preliminary injunction issued to Multicon should

-16-

continue in effect. (N.T. +16, 3-17). The preliminary

injunction was continued is effect with the consent of all

parties until April 30, 1971. (N.T. 2-35). However, all

attempts by Multicon to return to work at the site proved

futile. (N.T. 2-35, 2-36, 2-39, 2-77, 2-78, 3-32, 3-33,

3-38, 3-39, 19-8, 19-9). Gs several occasions Multicon

asked the Philadelphia poliee for aid in enforcing their

injunction against interference with construction but were

- told that it was up to the Sheriff's office to enforce

injunctions and that the Philadelphia police were not going

to interfere by making arrests unless speé Bical ly requested

‘by the Sheriff to do so. @.T. 19-13, 19-16, 19-17). On

April 26, 1971, Multicon obtained a writ of assistance from

Judge Hirsch. (N.T. 3-36). Om April 30, 1971, Multicon

agreed, after a conference in Judge Hirsch's chambers, to

the issuance of an order pmshibiting Multicon from returning

to work pending the outcome of negotiations between the

parties. (N.T. 3-39, 3-40). At the conference on April 30,

1971, City Managing Directar Corleto stated that Multicon

would not receive police amistance. (N.T. »-40).

Shortly thereafter, there were a series of meetings

between WAIC, PHA and Multien. (N.T. 2-78, 3-41, 3-42,

10-39). Various changes ia the Whitman Park Townhouse

Project were proposed to WAIC in order to settle the

controversy, including opesing a building in the project as

a community recreation area, reserving 50% of the units for

persons who were displaced by the clearance for the Whitman

project, raising the income levels of those persons who

would be eligible for the project and setting up a screening

committee, which would inchade Whitman residents, to assure

7-[ BEST COPY AVAILABLE |

that those living in the project would be an asset to the

community. (N.T. 3-45, 10-43, 10-44, 10-45, 10-46, 10-47).

On May 17, 1971, after full discussion and consideration of

the settlement proposals, WAIC voted down the final scenle-

ment offer of PHA. (N.T. 2-89, 3-45, 3-46). Om May 18, 19/1,

Mayor Rizzo was nominated as the Democratic candidate for

Mayor. (N.T. 3-53). On May 20, 1971, a meeting was held

in Judge Hirsch's chambers to consider a request by Multi-

con that the court's order of April 30, 1971 be lifted and

that Multicon be permitted to return to work on the Whitman

Park Townhouse Project. (N.T. 3-55, 3-56, 19-21, 19-24,

19-25). At the May 20th meeting, Managing Director Corleto

stated that the City would not provide police assistance for

Multicén should it return to work. (N.T. 3-57, 19-26 to 19-28).

Mr. Gordon Cavanaugh, Chairman of PHA, stated to those pre-

sent at the meeting t*at he had been instructed by Mayor Tate

to order Multicon not to resume work. (N.T. 2-91, 3-59, 19-26,

19-34, 19-36). Judge Hirsch then signed an order permitting

Multicon to return to work. However, faced with a threatened

lack of police assistance, Multicon decided that it would

not then return to work. (N.T. 19-38). On June 3, 1971,

Multicon approached HUD in Washington, D.C. and sought as-

sistance from HUD in building the Whitman Park Townhouse Pro-

ject. (N.T. 3-69, 10-73). Multicon requested HUD to exert

whatever pressure it could upon the City to get the City to

cooperate in building Whitman. (N.T. 3-69, 10-73). How-

ever, a Hud official in Washington, D.C. stated that HUD

did not want to take any action until after the November,

1971 election in Philadelphia. (N.T.

10-74 to 10-76)...

On July 14, 1971, Judge Dwyer of the Court of

Common Pleas of Philadelphia County issued a permanent

injunction against further interference with Multicon's

construction at the Whitman site in the case of Multicon v.

WAIC, No. 4515 (March Term, 1971, C.P. Phila.) (N.T. 3-80

to 3-81). On that same day, WAIC filed a lawsuit against

Multicon, WAIC v. Multicon, No. 1187 (July Term, 1971, C.P.

Phila.), seeking to halt further construction at the Whitman

site. Trial of this lawsuit commenced on August 4, 1971 and

continued through September 6, 1971. (N.T. 9-52 to 9-93).

In the early part of April, 1971, when Multicon

encountered difficulties with continuing the construction at

the Whitman site, Lieutenant Fencl of the Civil Disobediance

squad of the Philadelphia Police Department, who had been

present at the site during the demonstration, suggested that

it might be helpful if Multicon placed a fence around the

site, even though the original plans did not call for such

a fence. ° (N.T. 19-39, 19-40). Multicon contacted the

Philadelphia Department of Licenses and Inspectiorms to determine

what permits were required to construct a fence and was

informed that no license or permit was soquizes. (N.T. 19-40,

19-41). Multicon then contacted the Department of Streets

and submitted two plans for a fence around the Whitman site.

(N.T. 19-42). Multicon was told to submit a written request

19. Multicon also sought assistance from the regional HUD

office in Philadelphia. One local HUD official suggested

that HUD stop the flow of HUD money to Philadelphia

until the City cooperated in the construction of the

Whitman Park Townhouse Project. No action was ever taken

in connection with the suggestion. (N.T. 10-76 to 10-77,

10-79 to 10-80).

-19-

to the Department of Streets. Thereafter, Multicon was given

oral and written permission-°

to build a fence which would

close off Howard and Hancock Streets, two small streets

which ran only through the Whitman site, but which would

keep a through street, Shunk Street, open. (N.T. 9-93, 19-49,

19-52, 19-54, 48-54). Multicon proceeded to construct a

plywood fence around the construction site which was torn

down by persons unknown on the night of July 5, 1971. (N.T.

9-93, 19-55 to 19-56). The policeman patrolling the area

saw no one tearing down the fence. (N.T. 19-56). Thereafter,

Multicon engaged a contractor to build a chain link fence

‘with metal posts in place of the plywood fence which had

been destroyed. Construction of the chain link fence began

on or about August 31, 1971. (N.T. 19-58). Om September 1,

1971, Multicon received a violation notice from the

Department of Streets in commection with the fence and was

ordered to cease construction and to remove the fence.

(N.T. 9-96, 19-59). Multicon was told that the fence could

not be placed on the sidewalk. (N.T. 19-61). Later in the

day of September 1, 1971, WAIC picketed the fence subcontractor

at his home in Delaware County. (N.T. 9-96). On September 2,

1971, Mr. Marrara of the Street Department went to the

Whitman site and told Multicon that they would have to

remove the fence from the sidewalk. (N.T. 48-53). Mr.

Marrara testified that when he went to the Whitman site he

assumed that a permit had deen issued to Multicon to build

a fence, although he had not seen the permit. (N.T. 48-67,

20. Written permission was given by the Department of Streets

on April 29, 1971. ibit P96-10).

-20-

48-82). He also told Multicon that they could not close off

Hancock and Howard Streets with their fence. (N.T. 9-96,

9-97, 19-64). Hancock and Howard Streets were both small

streets which were completely enclosed within the Whitman

site and on which there was no traffic, either vehicular

or pedestrial.*2 (N.T. 19-64, 48-75). Within one-half hour

of Multicon's refusal to remove the cemented fence posts, a

city work crew with jackhammers was on the scene and, at

Mr. Marrara's direction, removed the fence posts. (N.T.

19-65 to 19-66). On September 3, 1971 Multicon received

two additional notices from the Department of Streets. One

‘ordered Multicon to remove its construction equipment, mobile

homes, materials and debris from the bed of legally open

streets, i.e., Howard and Hancock Streets. (N.T. 19-66). All

of Multicon's construction equipment referred to in the notice

had been on the Whitman site since April of 1971 and was

located on the streets so that the equipment would not

interfere with the construction of the houses on the other

areas of the site. (N.T. 19-67, 19-68). The second notice

required Multicon to construct concrete sidewalks adjacent

to all streets around and through the Whitman site. (\.T.

19-69). Many of these sidewalks, particularly on Howard

and Hancock Streets, were in bad repair when Multicon began

construction in March of 1971 and were in the same condition

when Multicon received its notice in September of 1971.

(N.T. 22-45, 22-63, 48-61, 48-62). The damage to the side-

walks had occurred when PHA had cleared the Whitman site.

21. The Whitman site had, at’ this point, been vacant for

about ten years.

-21-

(N.T. 22-52 to 22-53). Further, the City had agreed with

Multicon prior to commencement of construction that the City would

repair the sidewalks adjoining the Whitman Park Townhouse .

Project. (N.T. 22-52, 22-53). Nevertheless, Mr. Marrara

took the position that Multicon, as owner of the land, was .

responsible for the sidewalks. (N.T. 22-53). Finally, Mr.

Marrara did agree to allow Multicon, during construction on

the site, to merely blacktop the sidewalks so that equipment

could operate in the area. (N.T. 22-54). Mr. Marrara

stated that he only enforced the requirement that all City

streets be kept open and that sidewalks be fully repaired

‘when someone had made a complaint in connection therewith,

as had been done in this case. (N.T. 22-55, 22-56).22 Mr.

‘ Marrara stated that he was requiring Multicon to comply in

this case because it was a center of controversy. (N.T.

22-64, 48-58 to 48-60). Further, Mr. Marrara admitted that

the City generally did not enforce the fence regulations in

connection with high rise construction, although there was

no distinction between sidewalks around high rise and low

rise projects made in the City Code. (N.T. 22-56). Finally,

on September 3, 1971, after a conference with Multicon and

the First Deputy City Solicitor, John McNally, the Department

of Streets agreed that Multicon could erect its fence around

the site precisely in the location from which the Department

of Streets had previously removed it. (N.T. 22-69, 22-70).

Multicon submitted a written request for a permit to construct

this agreed upon fence on September 3, 1971. (Exhibit P96-10).

22. Mr. Marrara never received a complaint in connection

with the trailer and construction equipment which were

on Hancock and Howard Streets. (N.T. 48-102).

-22-

Mr. Marrara gave written approval for the fence on Septen-

ber 9, 1971, stating that “At no time will any permanent

barricade or fence be allowed om any .. . iegally open

street." Exhibit P96-11, (N.T. 48-57). The permit was

also conditioned upon Multicon maintaining the footways in

the area. (Exhibit P96-11).

On September 10, 1971, Multicon attempted to resume

its construction of the fence but was ordered by the Depart-

ment of Streets to stop until all the sidewalks were black-

topped. (N.T. 9-98). However, when the paving contractor

arrived at the Whitman site, he was asked by the residents

picketing along the street not to work and he honored their

request. (N.T. 9-98, 22-74, 22-78). Finally, on September 14,

1971, the City ordered the construction of the fence to

cease because the sidewalk was not being repaired. (N.T.

9-98). The chain link fence was never built by Multicon.

(N.T. 22-77, 22-78).

Throughout Mayor Rizzo's campaign for Mayor in

1971, both during the primary campaign and the general

election, he publicly took the position that within the

framework of the law, he would support local communities in

their opposition to public housing projects proposed for

their neighborhoods. (N.T. 42-75, 42-77). Mayor Rizzo

testified that, "I had a strong feeling when I ran for

election, it was crystal clear, that I would preserve the

neighborhoods of the City at any expense..." (N.T. 42-82).

During his campaign, Mayor Rizzo visited Seafarer's Hall in

the Whitman area, and publicly pledged his support to the

community in opposition to the proposed Whitman Park Town-

house Project. (N.T. 44-77). Om that same day, he placed

-23-

@ personal telephone call to Fred Druding, the president of

WAIC, pledging his support to WAIC in their opposition to the

Whitman project. (N.T. 42-76, 42-77). Mayor Rizzo further

testified that he did not know what type of public housing

was planned for the Whitman area, and that the particular

type of public housing proposed for an area did not influence

his decision to support the local commumity in its opposition

to a housing project. (N.T. 42-79). The only consideration

was whether the community supported the project or opposed it

and he would support that community. (N.T. 42-79). Moreover,

in considering whether to support or oppose a particular

public housing project, Mayor Rizzo testified that he did not

consider the racial effect of his commmity support. (N.T.

42-83). While stating that “there is a possibility. that it

might affect the minorities, that they might be short-

changed . . .", he said that such an adverse racial impact

would not change his position in support of the local

community. (N.T. 42-83, 42-84).

After Mayor Rizzo's election in November of 1971,

he had several meetings with James Greenlee, who was at

that time both general counsel for RDA and Chairman of PHA.

In November of 1971, Mr. Greenlee, as general counsel for

RDA, gave a legal opinion to RDA, which was subsequently

forwarded to HUD on November 23, 1971, that all required

procedures had been followed in the planning and development

of the Whitman Park Townhouse Project, and that no further

public hearings were necessary. (N.T. 9-99, 14-18) .29

23. The request for legal opinion was made to Mr. Greenlee

by Walter D'Alessio, Executive Director of RDA, because

of statements made in Federal Ceurt by Levy Anderson,

Esquire, City Solicitor for Philadelphia, that all proper

procedures had not been followed in connection with the

Whitman Park Townhouse Project. (N.T. 14-21).

-24-

ie eet

After Mayor Rizzo was elected Mayor in November, 1971, but

before he took office in January, 1972, Mr. Greenlee, as

Chairman of PHA, met with Mayor Rizzo to discuss the housing

program in the City of Philadelphia. (N.T. 14-23 to 14-25).

Mr. Greenlee testified that the Mayor's support was necessary

to develop any type of housing program in order to assure

passage of the necessary ordinances before City Council.

(N.T. 14-26). After discussion of the proposed public housing

plans, Mayor Rizzo expressed disfavor as to the sites

proposed. (N.T. 14-47). Mayor Rizzo stated that he

considered public housing to be the same as Black housing in

that most tenants of public housing are Black. (N.T. 14-47).

Mayor Rizzo therefore felt that there should not be any public

housing placed in White neighborhoods because people in

White neighborhoods did not want Black people moving in with

them. (N.T. 14-47). Furthermore, Mayor Rizzo stated that

he did not intend to allow PHA to ruin nice neighborhoods.

(N.T. 14-47, 14-48). After Mayor Rizzo took office in

January of 1972, he told Mr. Greenlee that because of the

promise he had made to the people of South Philadelphia in

the Whitman project area, he did not want to build the

Whitman Park Townhouse Project and asked Mr. Greenlee, as

Chairman of PHA, to prevent the building of the project.

(N.T. 14-49). The Mayor wanted Mr. Greenlee to cotain

passage of a resolution by PHA declaring Multicon in default

and the contract between PHA and Multicon void. (N.T. 14-54,

14-55, 14-59). Mr. Greenlee informed Mayor Rizzo that

cancellation of the Whitman Park Townhouse Project would

require paying Multicon for its losses and would jeopardize

federal funding for the City, particularly in view of the

-25-

fact that Whitman had been designated as a “match” for the

Morton Addition project. (N.T. 14-50, 14-52, 14-53, 14-59).

Mr. Greenlee suggested that Mayor Rizzo try to obtain a

compromise in connection with the Whitman project but Mayor

Rizzo stated that a compromise was not possible because the

people in the area felt that Black people would be moving

into the area if public housing were built. (N.T. 14-55,

14-56) .2" Mayor Rizzo then stated to Mr. Greenlee that the

Whitman Park Townhouse Project would not be built. (N.T.

14-62). Mr. Greenlee, when faced with this statement from

the Mayor, informed Mayor Rizzo of what is referred to as

‘the Phillips Amendment.*> = (N.T. 12-9, 14-63). This

statute provided that a mmicipality could cancel a public

housing project if in the case of Philadelphia, City Council

had a public hearing in connection with the proposed

cancellation and passed a resolution revoking the original

authorization for the project, and agreed to repay HUD all

the money it had advanced for the project and settle any

claim for damages by the builder. (N.T. 14-64, 14-65).

Mayor Rizzo stated that although the cost to the City of

Philadelphia of using the Phillips Amendment to terminate

the project was no obstacle to its use in this case, the

public hearing required by the Amendment would bring Black

people to City Hall to protest the proposed cancellation

and hence was an unacceptable procedure. (N.T. 14-65).

During the early part of 1972, there were numerous

meetings between Multicon and the new Deputy Mayor Philip

——

24. Mayor Rizzo felt that most of the people who would move

into the Whitman Park Townhouse Project would be Black

and that Whitman was a White neighborhood. (N.T. 14-57).

25. P.L. 176, 83d Cong., 67 Stat. 298, 306.

-26-

Carroll, who had been assigned by Mayor Rizzo to the

problems surrounding the Whitman Park Townhouse Project.

(N.T. 12-15, 24-3) .7° Mr. Carroll, during these meetings,

told Multicon that the City did not want the Whitman project

built. (N.T. 10-83). During this period, Mr. Carroll was

pressed by WAIC to support their opposition to the Whitman

Park Townhouse Project. (N.T. 24-15, 24-16, 24-53).

On May 25, 1972, Multicon again sought help from

HUD to exert pressure on the City in comnection with the

building of the Whitmen Park Townhouse Project. (N.T. 4-62).7”

Multicon requested that HUD take over the Whitman project.

(N.T. 4-63). However, HUD stated that it was not its policy

to take over projects and Multicon felt that HUD, although

sympathetic, was not going to be of assistance in completing

the project. (N.T. 4-63) .7° Therefore, Multicon told HUD

that they would return to Philadelphia and commence construction

of the project. (N.T. 4-63).

26. Mr. Carroll testified that, although he had daily

personal meetings with Mayor Rizzo, the Mayor never

enunciated his wee wd in connection with the Whitman

Park Townhouse Project to him, and all he knew about

the Mayor's policy in connection with the Whitman project

Mees) he read in the newspapers. (N.T. 24-4, 24-13,

27. Counsel for Multicon met in Washington, D.C. with David

Maxwell, general counsel for HUD. Multicon sought help

from HUD either getting construction of the project

completed or bringing the er to a halt and allow

Multicon to get out as well as it could. (N.T. 4-62).

28. Prior to this time, Multicon had in April of 1972 sought

HUD assistance with the Whitman project from the HUD

regional office. Multicon asked HUD to cut off federal

funding to Philadelphia under the workable program. How-

ever, stated that it would not follow that course of

action for political reasons. (N.T. 35-43, 35-45).

On April 28, 1972, RDA passed the following resolu-

tion, numbered 7973:

RESOLUTION AUTHORIZING ACTION RE: DEFAULT.

BE IT RESOLVED, By the Redevelopment Authority

of the City of Philadelphia that General Counsel is

authorized to take such action as may be necessary

in connection with any default between Multicon

Properties, Inc., provided, however, there is a

representation from the Philadelphia Housing Authority

of the default in its Contract for development of

housing in the Whitma: Redevelopment area, Whitman

Urban Renewal area.

PHA never made a representation of default to RDA. (N.T.

12-16). However, on April 28, 1972, the same date as the

above RDA resolution was passed, PHA Board Chairman James

‘Greenlee wrote to Francis Meyer, former Director of RDA,

informing RDA that Multicon would be in default of its

contract with PHA on April 29, 1972, as follows:

This is to notify you that on April

29th Multicon Properties, Inc., will be in

default in its agreement with the Philadel-

phia Housing Authority in regard to the par-

cel owned by Multicon and the Whitman Urban

Renewal Area. The agreement was entered

into on October 29, 1970, and Article IV,

Section A, on Page 4, commits Multicon to

complete its obligations within 18 months.

Multicon has not only failed to meet

its obligation, but a the Authority

no indication of when, ever, it intends 5S

resume building. (N.T. 12-6, 12-7, 14-66).

On June 15, 1972, Multicon wrote a letter to Deputy

Mayor Phillip Carroll stating that it intended to resume

construction of the Whitman project on Monday, June 26, 1972.

(N.T. 12-17, 4-64). This letter was sent by Mr. Carroll to

Chief Deputy Solicitor, Sheldon Albert, Esquire. (N.T. 12-17).

29. Mr. Greenlee testified that the resolution was passed

in an effort to get Multicon to proceed with the project

= of its problems therewith. (N.T. 14-68, 14-69,

-70).

-28-

Mr. Albert, after receiving the Multicon letter from Mr.

Carroll, prepared an equity action seeking a preliminary

injunction against Multicon's resumption of work on June 26,

1972. The action, captioned City of Philadelphia v. Multicon

Properties, Inc., Multicon Construction Corp., No. 3538

(June Term, 1972, C.P. Phila. Co.) was filed and docketed

at noon on June 22, 1972. (N.T. 12-21). On that same date,

Judge Hirsch, pursuant to the motion filed by Mr. Albert on

behalf of the City, granted the City an ex parte five-day

preliminary injunction, stopping Multicon from commencing

construction on Monday, June 26, 1972, pending a hearing on

June 27. The complaint, filed at noon on June 22, 1972,

alleged that the commencement by Multicon of construction

would "necessarily result in open and forcible conflict and

will threaten the peace, welfare and stability of the com-

munity and the City" and stated that:

The defendants, further, have no legal

right to construct. Its contracts and

agreements with the Redevelopment Authority

of the City of Philadelphia and the Philadel-

phia Housing Authority have terminated with

defendants' failure to complete construction

within eighteen months of the date of said

contracts and agreements, which date has long

passed, as the Redevelopment Authority this date

has so stated. Further, said contracts and

agreements were void ab initio, not having been

the subject of community consultation as

r ired b law. N.T. 12- l, 12-2 . (Em-

phasis supplied).

Also, on the morning of June 22, 1973, at about

10:00 a.m., the attorney for RDA in the then pending liti-

gation, captioned WAIC v. Multicon, petitioned Judge Dwyer

to withdraw from the jointly proposed Findings of Fact, Con-

clusions of Law and Brief which had been filed on behalf

of PHA, RDA and Multicon, The

-29-

petition was granted on June 28, 1972. (N.T. 12-22). The

papers filed by the defendants had sought a finding by the

Court that all the requirements with regard to citizen

participation in connection with the Whitman project had

been met, a position consistently maintained! by RDA throughout

the litigation. At the RDA meeting held on June 22,

1972, which began at 2:30 p.m., RDA passed resolution 8058

which reads as follows:

Be it resolved by the Redevelopment

Authority of the City of Phiiadelphia that

the contract entered into by and between

Multicon Properties, Inc., and the Redevelop-

ment Authority of the City of Philadelphia is

hereby declared to be void ab due to

cision- rocess as require er the

Various decisions of the U.S. Supreme Court,

or, in the alternative, said contract presently

in existence between the Redevelopment Authority

and Multicon Properties, Inc., is declared to

be in default, which contract became effective

on July 14, 1970. ;

Be it further resolved that counsel duly

designated by the Redevelopment Authority be

authorized to pursue all legal remedies avail-

able to the Authority in order to enforce the

rights of the Redevelopment Authority in

accordance with the terms of ths aforesaid

contract. (N.T. 12-23, 4-67). (Emphasis

supplied).

Deputy Mayor Carroll stated that the passage by RDA of the

June 22, 1972 resolution was not a surprise to him because

he had reviewed the resolution beforehand. He was also

informed almost immediately after the June 22, 1972 meeting,

first by Deputy to the Mayor Michael Wallace, and then by

RDA Executive Director Walter D'Alessio, that there was a

30. The Multicon contract is the only contract which RDA has

ever declared to be void ab initio, and, although

requested by the plainfiffs, RDA has not supplied the

names of the "various decisions of the U.S. Supreme Court”

referred to in the resolution. (N.T. 12-24.)

-30-

problem with the Resolution as drafted and submitted to RDA.

(N.T. 24-97, 24-103, 2-107). Finally, on the evening of

June 22, 1972, Michael Wallace, a Deputy to the Mayor appeared

at a WAIC meeting and explained the position of the City in

connection with the Whitman project and the RDA resolution

of that day. (N.T. 12-24).

On June 27, 1972, Multicon filed a counterclaim

in the equity action filed by the City, seeking $1.5 million

for the alleged tortious interference by the City with Multi-

con's contracts to build the Whitman Park Townhouse Project.

(N.T. 4-87, 12-29). On or about July 4, 1972, Dr. F. Bruce

Baldwin, Chairman of the RI \ Board, received a letter from

William B, Patterson, HUD area director, who stated the posi-

tion of HUD in connection with the June 22, 1972 RDA resolu-

tion. Mr. Patterson stated that "Such action is highly in-

proper and an action that cannot receive our concurrence,”

and get forth the requirements for terminating an approved

housing project under the Phillips Amendment. (N.T. 12-29).

On July 5, 1972, Mayor Rizzo wrote to John Whitaker,

Deputy Assistant to the President for Domestic Affairs in

the White House, as follows:

Many thanks for taking the time to discuss

the difficulties that the City of Philadelphia

is currently experiencing with the Area Office

of the Department of Housing and Urban Devel-

opment.

As I mentioned to you on the telephone this

morning, I am sending you additional information

regarding two of the most pressing protlems

involving two housing proposals which HUD is

attempting to foster on unwilling communities.

It would appear that HUD is a prime ex-

ample of carrying out a successful operation even

though the patient may die as a result.

The two programs in question are:

e31-

1. Whitman Park -- a Turnkey III Public

Housing Project.

Morrell Park -- an apartment proposal

Section 236. proposal under

Both of these proposals have met with

violent opposition and demonstrations by the

communities involved. In each case, the

opposition stems from the quality of the pro-

posed housing, which would downgrade the

neighborhoods.

The Whitman controversy appeared to be

finally settled when the Philadelphia Redevelop-

ment Authority canceled the contract with the

builder, Multicon Properties, Incorporated.

HUD, however, is seeking in Federal Court to

force construction of the project, much to my

dismay, and has threatened other possible

sanctions against the City, as shown in the

attached lecter received today from William

Patterson, HUD Area Director.

Although Patterson states in his letter

that he seeks to protect the interest of the

taxpayers, it would appear that he is doing

exactly the opposite.

* * * * 7

The City Administration has a recognized

responsibility to the reople of Philadelphia

and can not shield itself behind any bureau-

cratic regulations, as in the case of certain

HUD officials who apparently are unmindful of

our problems and the practical realities of

urban government.

I most certainly will appreciate any help

you can give in these two cases and, again,

ony thanks for your cooperation. (N.T. 12-30,

12-31, 12-32).

Shortly thereafter, HUD's general counsel, David Maxwell,

Esquire, gave instructions by telephone to HUD Regional

Director Theodore Robb to keep a “low profile” in the

Whitman controversy. (N.T. 12-32, 12-33).

Following receipt from HUD of the Patterson letter,

the RDA director and executive director consulted with Leon

Katz, Director of the RDA Legal Division, who had not

participated in the drafting of the June 22, 1972 resolution.

-32-

(N.T. 12-33). As a result of the conference, the following

resolution, No. 8061, was drafted to amend the June 22, 1972

resolution, and was adopted at a special RDA meeting held on

July 12, 1972 at 2:15 p.m. (N.T. 12-33, 4-74).

Be it resolved by the Redevelopment

Authority of the City of Philadelphia that

Resolution No. 8058, adopted by the duly

constituted Board of the Redevelopment Authority

on June 22, 1972, is hereby amended to read as

follows:

Be it resolved by the Redevelopment

Authority of the City of Philadelphia that

Multicon Properties, Inc., is hereby declared

to be in default of a contract presently in

existence by and between the Redevelopment

Authority and Multicon Properties, Inc.

(redeveloper), which contract became effective

on July 14, 1970.

Be it further resolved that counsel duly

designated by the Redevelopment Authority be

authorized to pursue all legal remedies avail-

able to the ——— in order to enforce the

rights of the Redevelopment Authority in

accordance with the terms of the aforesaid

contract. (N.T. 4-74, 12-33).

After passage of the June 22, 1972 RDA resolution,

Multicon informed the City, RDA and PHA that it would not

resume construction because it felt it had an obligation to

mitigate the damages it was seeking as a result of the

resolution and the City's equity action. (N.T. 4-68 to

4-71, 35-52). RDA, with the exception of one member of its

Board, did not consider the racial effect of its two

resolutions dated June 22, 1972 and July 12, 1972, but

maintains that it has no responsibility to consider such

racial impact. (N.T. 12-35). After passage of the July 12,

1972 resolution, Multicon sought by letter on July 25, 1972

advice from RDA as to whether it should seek to cure its

alleged default under its contract with RDA. (N.T. 4-78 to

4-81, 12-34). Multicon received no response from RDA in

o33-

connection with its July 25 letter as to whether it should

cure its alleged default. (N.T. 4-86). Settlement negotia-

tions continued between Multicon and the City in connection

with Multicon's counterclaim in the City's equity action

against Multicon. (N.T. 35-58). The action was finally

settled on December 14, 1972 by the City agreeing to pay

Multicon $806,000. (N.T. 4-89, 12-36).

According to HUD, there is presently available the

sum of $3.68 million for the construction of the Whitman

Park Townhouse Project as planned. (N.T. 12-74).

Whitman Demonstrations.

The opposition to the Whitman project took the form

of mass demonstrations at the project site led by WAIC.

Frequently, demonstrators would surround a piece of construction

equipment and prevent the workmen from operating the equipment.

Demonstrators also prevented trucks from making deliveries to

the area. (N.T. 21-10, 21-13, 3-83, 49-101). Some of the

demonstrators engaged in name calling, obscenities, threats,

and the use of racial slurs. (N.T. 21-10, 21-13, 49-126,

49-130, Exhibit P-91). Other demonstrators stated that they

did not want their neighborhood exposed to the type of people

who would move into the proposed public housing. (N.T. 21-16,

29-72, 29-75, 33-109, 33-110, 33-118, 33-121, 54-21).>> A

few demonstrators expressed their opposition to the Whitman

Park Townhouse Project on the basis that it would bring Blacks

31. Statements made by Whitman residents and WAIC members 5

often referred to residents of public housing as “they

or “them".

-34-

-

into the neighborhood and destroy the racial homogeneity of

the area. (N.T. 18-67, 18-68, 18-84, 28-13, 28-14, 28-15,

28-85, 54-183, 54-184, 54-188, 42-18, 42-22). The residents

and members of WAIC who opposed the Whitman Park Townhouse

Project publicly stated their opposition thereto on the

basis that public housingprojects are unsafe, unsanitary,

lead to increased crime or that the proposed residents of the

Whitman project were going to receive something for nothing,

which members of WAIC were unable to receive because of their

higher incomes. (N.T. 54-21, 56-10, 56-11).

Racial Composition of the City of Philadelphia

The City of Philadelphia is today a racially

segregated city. (N.T. 31-74, 31-75, 50-67).°* Moreover,

95% of the people on the waiting list for public housing in

Philadelphia are of minority background, 85% being Black while

10% are from other minority groups. (N.T. 31-127). Since

the close of the 19th century, a significant percentage of

the population of the City of Philadelphia has been Black.

(N.T. 31-42, 31-43).7° During the early 1900's, however, :

32. Defendant's ert stated, "So I think a reasonable

conclusion d be that Philadelphia is obviously

segregated along with all 200 other cities studied."

(N.T. 50-78). The evidence presented at trial shows

that other major cities in the East and Northeast are

also racially segregated. (N.T. 50-68, 50-71, Exhibit

D-1, D-2). Philadelphia, according to one study, has

become slightly less racially segregated in the last

ten years, as did every other major Eastern and North-

eastern city indexed by defendant's expert, with the

exception of Newark, New Jersey. (Exhibit D-1, D-2, D-3).

33. At the end of the 19th century, the Black lation in

Philadelphia had reached 40,000, placing Philadelphia

second in Black population among the ten largest cities

in the United States. (N.T. 31-43).

-35-

the Black population of Philadelphia was widely distributed

throughout the City. (N.T. 31-43, 31-44, 31-49, Exhibit P-1424). As the Black populstion in Philadelphia has increased

With the advent of World War I and a greatly increased

migration of Blacks to the industrialized cities, the Black

population became concentrated in certain defined areas of

the City. (N.T. 31-46, 31-63). By 1939, the Black population .

was concentrated in three areas of the City, North Philadelphia

from 1940 until the present, the West Philadelphia Black popu-

_ lation area has grown to include

an area scuth of Market Street and the North Philadelphia

Black population has expanded considerably to the north.

(N.T. 31-67, 31-69).°° However, large areas of Philadelphia

have remained areas with very few Black residents and

indeed, some areas since 1940 have shown a decrease in Black

, population. (N.T. 31-70, 31-72, 31-73, Exhibits P-188, P-189).

In 1970, 68.9% of all Blacks in Philadelphia lived in areas

which were 75% or more Black. (N.T. 31-75). In the ten

years between 1960 and 1970, there was an increase in those

‘areas which are racially impacted, i.e., have a minority

= concentration of 40% or more. (N.T. 51-59, Exhibiis P-152,

P-154) .37

PHA was created in 1937 and adopted a policy which

resulted in the segregation of its public housing projects

according to the racial composition of the neighborhood in

which they were located. (N.T. 31-76, 31-79)3%As a result of

(the area just north of Center City), West Philadelphia,

north of Market Street, and South Central Philadelphia

(immediately south of Center City toward the Schuylkill River).

(N.T. 31-56, Exhibits P-143, P-144).°4 At the same time, the Black

population in Philadelphia decreased in the Northeast, the

Northwest, che Southwest and the Southeast section

City. The area comprising the Whitman project observed a

decline of about 300 in its Black population between 1930

and 1940 and in 1970 there were only 100 Black residents in

the area. (N.T. 31-57, 31-70, Exhibits P-146, P-147, P-148,

P-152, P-154). Since 1940, the Black population of the City

of Philadelphia has been on the increase. (N.T. 31-64,

31-65). Im the period 1950-1960, following World War II,

there was a large migration of Black people from the South

to the Northeastern United States. (N.T. 31-65). In 1970,

34.4% of the population in the City of Philadelphia was : 36. Defendant's expert testified that the Black population

35 has shown some mobility in the recent past. However,

mnon-White. (N.T. 31-68, 50-90). he conceded that such mobility did not result in a racial

mixture but simply a reconcentration of Black population

in more racially papeoees areas of the City, and the

expansion was probably the result of the large growth of

Black population. (N.T. 51-67, 51-74). Further, defend-

34. In 1940, the Black population in the City of Philadelphia ‘ ant's expert testified that there were only three census

was 252,757, and comprised 13.1% of the total population tracts in the City of Philadelphia which could be

in Philadelphia. (N.T. 31-63). characterized as Levies a stable interracial population

composition. (N.T. 51-79).

35. Im 1960, the non-White population of Philadelphia com- ;

rised 26.7% of the total population. (N.T. 50-89). 37. These areas increased, according to the defendant's expert,

is increase in pacer of the City's total popula- because the total Black population increased,while the

tion between 1960 and 1970 represented an increase of total population of Philadelphia remained stable. (N.T.

135,000 Slacks. 51-59). This also led to an increase in the total

number of census tracts containing Black population of

ovér 10%. (N.T. 51-60).

38. See pavers v. Randall. 40 F. Supp. 743 (E.D. Pa. 1941) in

ch the court upheld this policy of racial segregation.

-36- :

this policy, the first housing projects acquired by PHA,

Tasker Homes, Johnson Homes and Richard Allen

Homes, became segregated: Johnson and Allen being over 90%

Black, while Tasker was over 90% White. (N.T. 31-80,

31-88, 31-89, 31-90, Exhibit P-145). By 1950, PHA had

acquired five additional housing projects, all located in

White areas of Philadelphia and all occupied overwhelmingly

by White tenants. (N.T. 31-92, 31-94, Exhibit P-146).

Between 1950 and 1960, PHA took over 15 new public housing

projects, which more than doubled the public housing stock

in Philadelphia. (N.T. 31-95, 31-96). Of the fifteen new

projects, eleven were built in the three Black areas of

Philadelphia and were populated 967% by Black tenants.

(N.T. 31-96). >? The four other new projects were located

in White areas of Philadelphia and were tenanted 88% by

White tenants. (N.T. 31-96, 31-97). As of 1960, only

one public housing project operated by PHA could be character-

ized as integrated. (N.T. 31-97). All the other projects

were tenanted in accordance with the racial composition of

the area in which they were located. Presently, PHA

operates under a policy which it characterizes as "a freedom

of choice policy," pursuant to which tenants are permitted

to list their choice concerning the location of the public

housiig projects which they prefer. (N.T. 56-70, 56-77).

In the ten year period 1960 to 1970, PHA

constructed twelve new public housing projects, nine of

which were built in overwhelmingly Black neighborhoods.

(N.T. 31-98, 31-104). After 1970, PHA's housing construction

activity slowed somewhat with seven additional projects

39. Thece was one exception, Spring Garden Aparssents, which

was under 90% Black, but still populated overwhelmir,-y

by Black tenants. (N.T. 31-96).

being built adding only 270 units. Five of these projects

were located in overwhelmingly Black neighborhoods, and two

were located in racially mixed neighborhoods. (N.T. 31-104,

31-105). There are presently 50 public housing projects

in Philadelphia operated by PHA on which occupancy reports

have been obtained. (N.T. 31-105, 31-106).°° As of June,

1974, forty of these projects were 75% or more Black

occupied, and six were 90% or more White occupied. (N.T.

31-106). Two of the four remaining projects were housing

for the elderly built in racially mixed neighborhoods.

(N.T. 31-107).

PHA has also established a program of scattered

site housing, in which a housing unit is bought or leased

by PHA and offered to public housing tenants. (N.T. 31-119). *?

As of 1969, well over 90% of all scattered site units in

Philadelphia were concentrated in two of the three Black

areas. of Philadelphia. (N.T. 31-117, Exhibits P-149,

p-158).“* This policy of locating scattered site units in

predominantly Black residential areas of Philadelphia has

continued to the present time. (N.T. 31-120, 31-121).

40. This number does not reflect additions to emerEte, Pragects..

which HUD considers as separate projects. (N.T. -106).

41. The scattered site housing program includes both houses

which PHA purchases and renovates and leases to public

housing tenants, and houses which PHA leases from a

115) owner and then offers as public housing. (N.T.

42. Prior to 1969, City Council had restricted its authoriza-

tion for the acquisition of scattered site housing by

PHA to West Philadelphia, north of Market Street, an area

of concentrated Black population. (N.T. 31-118).

PHA public housing projects continue to reflect Black areas of Philadelphia. (N.T. 31-131). This points

to the obvious conclusion that there is a coexistence between

the racial composition of the neighborhood in which they

race and low income in Philadelphia. *> Also, these areas of

are located. (N.T. 31-124, 31-125, 31-128). Those located

in White neighborhoods are predominantly White, while those

located in Black neighborhoods are predominantly Black.

Most of the public housing projects and the scattered site

high concentration of Black population have the lowest

percentage of owner occupied housing in Philadelphia. (N.T.

31-133, Exhibits P-156, P-157). The three areas which have

units are located in Black residential areas of the City been identified as the predominantly Black areas of Phila-

of Philadelphia. (N.T. 31-128). As of 1974, 90.8% of all

the units in the public housing stock of Philadelphia were

occupied by non-White tenants. (N.T. 31-126, Exhibit P-194).

: delphia contain owner occupied housing with the lowest values

in Philadelphia. (N.T. 31-133, 31-134, Exhibits P-158, P-159).

As of 1970, the highest incidence of overcrowded housing

units in Philadelphia occurred in the three Bleck residential

areas of Philadelphia. (N.T. 31-135, Exhibit P-.163). These

The percentage of non-White public housing occupancy has

increased steadily from 1963 wntil the present. (Exhibit

p-104),*? Further, one-half of the White families living statistics clearly reveal that the Black population in the

City of Philadelphia is concentrated in residential areas of .—

the City which are characterized by the lowest housing

quality, and the highest incidence of overcrowding. Finally,

combined with the fact that the Black population has a

in public housing in 1974, lived in projects which were

95% or more White. (N.T. 31-129).

As of 1970, of the 54,000 families in Philadelphia

with incomes below the poverty level, over 31,000, or

58% were Black. (N.T. 31-130). Im addition, 77% of Black

households in Philadelphia had incomes below the median

disproportionate number of people with incomes below the

poverty level these statistics lead to the conclusion that

income for the standard metropolitan area, while only 52% the Black population in Philadelphia occupies the poorest

of the White families were below the median. (N.T. 31-130).

Further, the areas of the City of Philadelphia which have

housing because it cannot afford to live elsewhere.

As noted earlier, the area comprising the Whitman

the highest concentration of lowest income families are peajest cheteves @ Cocline of chout 300 in its Blast

precisely those areas which have the highest concentration

of Black population, i.e., the three previously identified 45. Defeadant's expert testified that the Black population

: had shown overall economic improvement in the ten years

between 1960 and 1970. (N.T. 51-70 to 51-74). However,

he did not take issue with the conlusion that Blacks

live in the poorest sections of Philadelphia and

represent a higher percentage of the lowest income

43. Im 1972, 84% of the public housing units in Philadelphia

were occupied by non-Widm tenants. (Exhibit P-194). levels in Philadelphia. Indeed, defendant's expert testi-

; fied that the median low income level of Blacks in Phila-

44. The poverty level is defined as those families whose delphia has prevented their movement, in terms of housing,

an sist less than $500.00 per person per year. to predoninencly White areas of the City. (N.T. 51-75,

— F 51-76).

population between 1930 and 1940 and in 1970 there were

only 100 Black residents in the area. (N.T. 31-57, 31-70,

Exhibits P-146, P-147, P-148, P-152, P-154). Clearance for

the Whitman Townhouse project took place in 1959 and 1960

and clearance for the Whitman Urban Renewal Project took

place in the late 1960's, prior to 1969. (N.T. 31-144).

In 1950, the area which became the site for the Whitman

Park Townhouse Project, i.e., bounded by Porter Street to

the north, Oregon Avenue to the south, Front Street to the

east, and midway between Second Street and Hancock on the

west, contained a large number of Black families. Indeed,

in 1950, 46% of the families living on the Whitman site

were Black, which made this area an integrated section of

Philadelphia. (N.T. 31-146). As of 1960, when the Whitman

site was being cleared, four Black families remained on the

Whitman site, while the a A to Second Street had

a substantial increase in the number of Black families.

(N.T. 31-147, Exhibits P-169, P-195).“© However, by 1970,

after completion of the clearance for the Whitman Park

Townhouse Project and the Urban Renewal, there were no

Black families living in the southeastern portion of the

Whitman area. (N.T. 31-148, Exhibit P-170).47 The area

adjacent to the west of the Whitman Park Townhouse Project

site, i.e., Third and Phillips Streets, which contained

many Black families, was cleared by RDA in the course of

46. The number of Black households in blocks adjacent to

the Whitman site doubled from 15 to 30. (Exhibit P-195).

47. — wy 4 in which ane are i Black households

in the itman area is the far northeast corner of the

Whitman area. (N.T. 31-148, Exhibit P-170).

»- *

its activities in connection with the Whitman Urban Renewal

Area. New townhouses have been built in this area consisting

of over 100 units, which are now occupied exclusively by

White residents. (N.T. 31-153, 31-154, Exhibit P-195). The

effect of these urban clearance actions by both RDA and PHA

appears to have converted an integrated area of Philadelphia

into a non-integrated area.

In the years between 1967 and 1972, several

public housing projects, in addition to the Whitman Park

Townhouse Project, were proposed for construction in

predominantly White areas but were never completed because

‘of public opposition. For example, in the fall of 1968,

a 192 unit public housing project was proposed for the

Roxborough area of Philadelphia, a White area of the City.

However, opposition surfaced to the proposed project and

the developer abandoned the project. (N.T. 6-43, 6-47, 6-48,

Exhibit P-33). In addition, a public housing project

proposed for Welsh Road in the near Northeast section of

Philadelphia, a White area of the City, which required a

zoning change, was dropped when public opposition arose.

(N.T. 6-48, 6-50, Exhibit P-33). In the far Northeast

section of Philadelphia, a predominantly White area of the

City, 92 units of Turnkey III public housing were proposed

for Woodhaven and Barbary. A zoning change was required

and public opposition arose which resulted in the developer

changing his plans and proposing 110 units of higher density,

unsubsidized housing, which the community supported. (N.T.

6-53, 6-55, 6-58, 6-59).

-43-

STANDING

The defendants contend that the record in this

case does not support a finding that any plaintiffs, either

individual or organizational, have standing to represent

the class certified by this Court. In an Order dated May 7,

1975 this Court certified this case as a class action on

behalf of "all low income minority persons residing in the

City of Philadelphia who, by virtue of their race are unabie

to secure decent, safe, and sanitary housing, outside of

areas of minority concentration, and who would be eligible

to reside in the Whitman Park Townhouse Project." It is,

of course, elementary that in order to maintain a class

action there must be at least one named plaintiff, whether

individual or organizational, who has established the

requisite standing to maintain the action. Simon v. Eastern

Welfare Rights Organization, 44 U.S.L.W. 4724

(June 1, 1976). Plaintiffs who represent a class "must

allege and show that they personally have been injured, not

that injury has been suffered by other, unidentified members

of the class to which they belong and which they purport

to represent." Warth v. Seldin, 422 U.S. 490, 502 (1975).%8

The question of standing is in essence the question of

whether the plaintiffs are entitled to have the court decide

the merits of the dispute and “involves both constitutional

limitations on federal court jurisdiction and prudential

limitations on its exercise." Warth v. Seldin, 422 U.S. 490,

48. See Simon v. Eastern Kentucky Welfare Rights Organization,

44°U.S.L.W. 4724, 4728 n. 20 (June 1, 1975).

oh 4-

498 (1975). “9 “(T]he standing question in its Art. III

constitutional aspect ‘is whether the plaintiff has

“alleged such personal stake in the outcome of the controversy"

to warrant his invocation of federal court jurisdiction and

to justify exercise of the court's remedial powers on his

behalf.'" Simon v. Eastern Kentucky Welfar hts Organi-

zation,“? 44 U.S.L.W. at 4728, quoting from Warth v. Seldin,

422 U.S. 490, 498-499 (1975). The party seeking review

must himself have suffered an injury that is likely to be

redressed by a favorable decision. Sierra Club v. Morton,

405 U.S. 727, 738 (1972).

An association or organizational plaintiff may

establish standing in either of two ways. First, an organ-

ization may have standing in its own right to seek judicial

relief from injury to itself end to vindicate whatever

rights and immumities the organization itself may enjoy. In

seeking relief from injury to itself, the organization may

assert the rights of its members, at least so long as the

challenged infractions adversely affect its members’ associa-

tional ties. NAACP v. Alabama, 357 U.S. 449, 458-460 (1958).

49, In the Supreme Court's recent opinion in Singleton v.

Wulff,-44 U.S.L.W. 5213 (July 1, 1976) the Court framed

the issue as follows:

[T]wo distinct standing questions are presented.

We have distinguished theminprior cases, . . .and

they are these: first, whether the plaintiff-

appellees allege “injury in fact," that is, a

sufficiently concrete interest in the outcome

of their suit to make it a case or controversy

subject to a federal court's Art. III jurisdic-

tion, and, second, whether, as a prudential

matter, the plaintiff-appellees are proper pro-

ponents of the particular legal rights on which

they base this suit. 44 U.S.L.W. at 5215. '

AS

Second, even in the absence cf iniury to itself, an organ-

ization may have standing solelv as a representative of

its members, so long as the organization alleges “that

its members, or any one of them, are suffering immediate

or threatened injury as a result of the challenged action

of the sort that would make out a justiciable case had

the members themselves brought suit." Warth v. Seldin,

422 U.S. 490, 511 (1975).

Apart from these minimal constitutional mandates,

there are other prudential limitations on the standing

requirement of plaintiffs in the U. S. District Court. These

limitations were recently enumerated by the U.S. Supreme

Court as follows: |

First, the Court has held that when the

asserted harm is a "generalized grievance”

shared in substantially equal measure by

all or a —— class of citizens, that harna

alone normally does not warrant exercise of

jurisdiction. .. . Second, even when the

plaintiff has alleged injury sufficient to

meet the “case or controversy" requirement,

this Court has held that the plainciff

generally must assert his own legal rights

and interests, and cannot rest his claim to

relief on the legal rights cr interests of

third pasties. Warth v. Weidin, 422 U.S.

at 499. (Citations omitted).

50. In Singleton v. Wulff, 44 U.S.L.W. 5213 (July 1, 1976),

the U. S. Supreme Court enumerated two exceptions to the

rule that a litigant may not assert the rights of third

parties not involved in the lawsuit. The Supreme Court

stated that if the relationship of the litigant to the

erson whose right he seeks to assert is “inextricably

eaten up with the activity the litigant wishes to pursue,

the Court . . . can be sure that its construction of the

right is not unnecessary in the sense that the right's

enjoyment will be unaffected by the outcome of the suit.

Second, the Court may inquire into the ability of the

third party to assert his own right. “If there is some

enuine obstacle to such assertion,” the third party who

s in court becomes “the right's best available proponent.”

44 U.S.L.W. at 5216. Because under the facts of this case

we have no third party involvement, these exceptions are no*

applicable to this case.

-46-

With these principles in mind, we will look to the

facts of this case and analyze the standing of the plaintiffs

involved. The primary focus of our inquiry in this suit

turns upon whether an individual plaintiff has established

an actual injury, or whether the plaintiff organizations

have established actual injury to any of the persons which

they represent.

Jean Thomas, a Black woman, testified that she

was currently living in public housing which was unfit for

her family, that her current "scattered site” house is

located in a racially impacted area of the City, that she

has applied to PHA for a transfer, that there is no space

available for her and that she would like to move to the

Whitman project if it is built. We find that Ms. Thomas

has sufficiently established that she will be immediately

and personally injured if the Whitman project is not built.>+

Further, Ms. Thomas does not allege a generalized grievance

which is shared by a large class of citizens, nor does she

seek to represent a third party not a plaintiff in this

action. Warth v. Seldin, 422 U.S. 490, 499 (1975).

After the trial of this case, the defendants

alleged that Ms. Thomas wished to change her testimony.

However, after a hearing Ms. Thomas refused to testify on

the basis of her Fifth Amendment privilege against self

incrimination. Therefore, her testimony remains unchanged,

Sl. Ms. Thomas did not ceett ey, hag she was scheduled to

move to the itman project. However. the tenants had

mot yet been selected for the Whitman area, other than that

the tenants were to be from public housing eligibility

lists. Her failure to testify that she would have

moved to Whitman does not destroy her standing.

atacked only by allegations by other counsel in the case

that her trial testimony was false. However, even with

Ms. Thomas’ testimony stricken from the record in this case,

Nellie Reynolds, chairperson of RAB, testified, and,

although she testified in her representative capacity as the

head of RAB, in the exece-cnantnation of Ms. Reynolds

it was established that she had the requisite standing to

be a plaintiff. Ms. Reynolds, a Black woman, lives in a

high rise public housing project located in a Black area of

the City. She testified that she was dissatisfied with her

current housing, that she would like to live in an integrated

area of Philadelphia and that the Whitman Park Townhouse

Project would have provided her with such an opportunity.

Ms. Reynolds testified that, at present, ne such openings

exist. She asserted more than a generalized grievance

shared by a large class and she does not seek to represent

the interests of a third party.

In addition, we find that RAB is a proper party

plainciff with standing to represent its members. Although

there is no allegation that RAB was injured as an organiza-

tion by the termination of the Whitman project,it is clear

that RAB has established actual injury to its members. As

pointed out earlier, RAB is an organization composed of

persons who are living in public housing or who are eligible

for public housing. RAB's membership is 95% Black and RAB

represents all those who are tenants in public housing or

are eligible to become tenants. RAB contends chat low

income minority residents of the City of Philadelphia are

unable, because of their race, to secure decent housing

outside areas of minority racial concentration and that the

-45-

failure to build Whitman has deprived them of the opportunity

to escape from these conditions. Clearly, if RAB‘'s claims

are legally cognizable, its members have been injured by

the failure to build the Whitman project. Those RAB members

who live in racially impacted areas of the City of Philadel-

phia are obviously harmed by the failure to build a scheduled

housing project in a non-racially impacted area. Those on

the waiting list, which is predominantly Black, have lost

the opportunity to live in public housing in a White area.

Further, the complaint in this case seeks only declaratory

and injumctive relief which is prospective in nature and

any remedy granted can reasonably be expected to inure to the

benefit of those members of the association who have been

actually injured. Warth v. Seldin, 422 U.S. 490, 515 (1975).

We find, that the members of RAB will suffer actual injury

if the Whitman project is not built.

The issue as to the standing of the Housing Task

Force presents a more difficult question. However, since we

have determined that there are other plaintiffs in this

case who possess the standing required to maintain the

action, we need not decide the standing of the Housing Task

Force. We do note, however, that the evidence shows that

at least one member of the Housing Task Force currently

resides in public housing.

Class Action Determination

As stated herein this Court has certified this

action as a class action on behalf of "all low income

minority persons residing in the City of Philadelphia who,

-49.

by virtue of their race are unable to secure decent, safe,

and sanitary housing, outside of areas of minority concen-

tration, and who would be eligible to reside in the Whitman

Park Project." In their briefs attacking the plaintiffs’

standing in this case, the defendants, although not

specifically addressing the class action issue, have argued

that the claims of the plaintiffs are not typical of the

claims of the class, and that therefore the representative

parties will not fairly and adequately protect the interests

of the class as required by Rule 23(a)(3) and (4) Federal

Rules of Civil Procedure. >* We find that the plaintiffs

in this case do present claims that are typical of those of

the class and will fairly and adequately protect the

interests of the class. The plaintiffs are presently in

public housing or represent those who are in public housing

or who are on the waiting list for public housing. Defendants

contend that the plaintiffs have never applied to live in

the Whitman project and therefore were not harmed by the

failure to build Whitman. We find no merit to this conten-

tion in view of the fact that there was no procedure for

anyone to apply for admission since the Whitman project was

never constructed. We find that this action is appropriate

52. Rule 23(a) of the Federal Rules of Civil Procedure provides:

One or more members of a class may sue or be

sued as representative parties on behalf of all only

if (1) the class is so numerous that joinder of all

members is impracticable, (2) here are questions of

law or fact common to the class, (3) the claims or

defenses of the representative parties are typical of

the claims or defenses of the class, and (4) the

representative parties will fairly and adequately

protect the interests of the class.

-50-

for class treatment under Rule 23(a) and (b)(2) of the

Federal Rules of Civil Procedure.

The Merits

Plaintiffs have advanced three separate legal

theories which they claim establish liability against all

the defendants under the facts of this case. First,

plaintiffs argue that the governmental defendants have an

obligation under Title VIII of the Civil Rights Act of

1968 (The Fair Housing Act) 42 U.S.C. § 3601 et seq., to

act affirmatively to promote integration in all federally

assisted housing programs. Plaintiffs argue that the

action taken by the governmental defendants in this case

perpetuates the existing racially segregated low income

public housing system in the City of Philadelphia and hence

violates the affirmative duty imposed by Congress under

the 1968 Fair Housing Act. On the basis of this record we

find that the governmental defendants have failed to

exercise their affirmative duties imposed by the 1968

Civil Rights Act in connection with the Whitman Park

Townhouse Project.

Second, the plaintiffs contend that Title VIII

of the Civil Rights Act of 1968, 42 U.S.C. § 3601 et seq.,

and Title VI of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000d, preclude governmental and private action which

has an adverse racial effect or a racially discriminatory

effect. Under this second theory, plaintiffs contend

that they need only establi.h that the governmental and

private actions taken to cancel the Whitman Park Townhouse

~32-

Project had an adverse effect on racial minorities, or

a racially discriminatory effect. The burden would then

shift to the defendants to show a compelling governmental

interest justifying the adverse racial effect. We find

that the actions taken by the governmental defendants in

this case have had a racially discriminatory effect and

that those defendants have established no compelling

governmental interest justifying their action.

As to their third theory of liability, plaintiffs

contend that the evidence presented in this record shows

that the governmental and private defendants acted with

a racially discriminatory purpose or intent in terminating

the Whitman Park Townhouse Project. Such action taken

with a racially discriminatory purpose would violate the

Fifth, Thirteenth, and Fourteenth Amendments, as well as

the various Civil Rights Statutes, 42 U.S.C.§§ 1981, 1982,

1983, 2000d, and 3601 et seq. Plaintiffs contend that

once a racially discriminatory purpose or intent is found,

there is no defense and liability follows. We also find

that the evidence in this record establishes that the

City of Philadelphia acted with a racially discriminatory

purpose in halting the Whitman Park Townhouse Project, and

in cancelling the contracts with Multicon therefor.

a) Affirmative Duty

As to the plaintiff's first theory of liabiliry,

i.e., that the governmental defendants were obligated to

act affirmatively to promote integration in all federally

funded housing, we note that Congress has long been concerned

-52-

with the complex and severe problems created by segregated

housing in the United States and has accordingiy enacted

various statutes intended to remove racial discrimination

in housing. Title VI of the Civil Rights Act of 1964, 42

U.S.C. § 2000d bans racial discrimination in all federally

assisted programs in the following language:

No person in the United States shall, on the

ound of race, color, or national origin,

e excluded from participation in, be denied

the benefits of, or be subjected to discriz-

ination under any program or activity receiving

Federal financial assistance.

Congress extended the prohibition on race discrimination to

private housing and added provisions applicable *o govern-

mental housing which were designed to give further force

to the provisions of the 1964 Act when it enacted the fair

housing provisions contained in Title VIII of the Civil

Rights Act of 1968, 42 U.S.C. § 3601 et seq. The 1968 Act

states that:

It is the policy of the United States to

provide, within constitutional limitations,

for fair housing throughout the United States.

42 U.S.C. §3601.

The operative section of Title VIII, 42 U.S.C.

§ 3604, bars discrimination in the sale or rental of housing,

including both governmentally and privately operated wits,

as to both the actual sale or rental and all terms and

conditions, in the following language:

As made applicable by section 3603 of this

title and except as exempted by sections 3603(b)

and 3607 of this title, it shall be unlawful -

(a) To refuse to sell or rat after the

making of a bona fide offer, or to refuse

to negotiate for the sale or rental of,

or otherwise make unavailable or deny,

6 ro to any person because of race,

color, religion, sex, or national origin.

(b) To discriminate against any person

in the terms, conditions, or privileges

of sale or rental of a dwelling, or in

the provision of services or facilities

in conmection therewith, because of race,

color, religion, sex, or national origin.

Along with outlawing private housing discrimina-

tion for the first time, the sponsors of the Fair Housing

Act determined that the provisions of Title VI of the Civil

Rights Act of 1964 prohibiting discrimination in federally

assisted housing required strengthening. Senator Brooke,

in stating that the 1964 Act had not achieved its desired

effect, stated:

Rarely does HUD withhold funds or defer

action in the name of eg ee In

fact,if it were not for all the —

delines the housing agencies have

ssued since 1964, one would scarcely know

a Civil Rights Act had been passed. 114

Cong. Record 2527-2528.

Senator Brooke pointed out that “an overwhelming proportion

of public housing . . . in the United States directly built,

financed and supervised by the Federal Government -- is

racially segregated." 114 Cong. Record 2528. Senator Brooke

also stated:

What adds to the murk is officialdom's

apparent belief in its own sincerity.

Today's Federal housing official commonly

inveighs against the evils of ghetto life

even as he pushes buttons that ratify their

triumph--even as he ok's public housing

sites in the heart of Negro slums, releases

planning and urban renewal funds to cities

dead-set against integration, and approves

the financing of suburban subdivisions

from which Negroes will be barred. These

and similar acts are committed daily by

officials who say they are unalterably

opposed to segregation, and have the memos

to prove it.

: . But when you ask one of these gentle-

men why, despite the 1962 fair housing Order,

most public housing is stiil ——— he

invariably blames it on regional custom,

local traditions, personal pre‘udices of

municipal housing officials. 1. 4 Cong.

Record 2281

Senator Brooks concluded by saying:

In other words, our Government, unfor::-

mately, has bee’ sanctioning discrimina-

— in housing chroughout this Nation.

Senator Mondale also addressed the actions of

government in promoting or continuing racial segregation in

housing:

Negroes who live in slum ghettos, however,

have been unable to move to suburban con-

munities and other exclusive’ y White areas.

In' part, this inability stems from a refusal

by suburbs and other communities to accept

low-income housing . .. . An important factor

contributing to exclusion of Negroes from

such areas, moreover, has been the poi cies

and practices of agencies of government ¢

all levels. 114 ae Record 2277. (Quoting

the Milwaukee Journal).

The preceding passages make it clear that Congress was well

aware of governmental action contrary to previous legislative

prohibitions of racial discrimination in housing. Congress

was aware of the refusal of certain commmities to accept

low income housing, which refusal added to the inability of

low income Blacks to escape their "slum ghettos." Therefore,

in an effort to end segregation in public housing Congress

enacted § 3608(d)(5), requiring affirmative action by HUD

and HUD assisted agencies to cure this widespread problen.

That section provides that:

(d) The Secretary of Housing and Urban

development shall --

(5) administer the programs and

activities relating to housing and urban

development in a manner affirmatively to

further the eensesee of this subchapter.

42 U.S.C. § 3608(d) (5).

It is this provision, commanding affirmative action to end

segregation in housing and to promote fair housing, which

cr

we find the governmental defendants in this case have

violated.

We are, of course, guided in our determination of

the standards required by governmental agencies wider

§ 3608(d)(5) by our Third Circuic's decision in Shannon v.

HUD, 436 F. 2d 809 (1970). The Third Circuit in Shannon

described the progression in the Civil Rights Acts from

the commands of the 1964 Act of non-discrimination to the

affirmative requirements in the 1968 Act that governmental

agencies promote fair housing as follows:

Read pogeter, the Hous Act of 1949 and

the Civil Rights Acts of 1964 and 1968 show

a@ progression in the thinking of Congress

as to what factors significantly contributed

to urban blight and t steps must be taken

to reverse the trend or to prevent the recur-

rence of-such blight. In 1949 che Secretary,

in whether a plan presented by a

LPA included a workable program for community

improvement, could not act unconstictutionally,

but possibly could act neutrally on che issue

of racial segregation. By 1964 he was directed,

when considering whether a program of commmity

development was workable,—to -iook at the effects

of local —— action and to prevent discri-

mination housing resulting from such action.

In 1968 he was directed to act affirmatively

to achieve fair housing. Whatever were the

most significant features of a workable program

for community improvement in 1949, by 1964 such

4 ony had to be nondiscriminatory in its

effects, and by 1968 the Secretary had to

— promote fair housing. 436 F. 2d

act °

In Shannon, HUD had failed to consider the racial

composition of the area in which low-moderate income housing

was to be constructed before its issuance of a contract of

insurance and approval of a project for a rent supplement

contract. Rather HUD had only examined the land use factors

involved in approving the project. The Court stated that

the discretion of HUD to choose the methods of achieving

the national housing objectives "must

= * S

_— -—,.

be exercised within the framework of the national policy

against discrimination in federally assisted housing, 42

U.S.C. § 2000d, and in favor of fair housing. 42 U.S.C.

§ 3601. When [a] .. . decision is made without considera-

tion of relevant factors it must be set aside." 436 F.

2d at 819.7° The Court in Shannon held that HUD could not

be “color blind” in connection with the “very real effect

that racial concentration has had on urban blight," 436

F. 2d at 820, and noted that "Increase or maintenance of

racial concentration is prima facie likely to lead to urban

blight and is thus prima facie at variance with che national

housing policy.” 436 F. 2d at 821.

Other courts have agreed with our Third Circuit

and have held that the affirmative duty required by Title

VIII of the 1968 Civil Rights Act applies not only to HUD

but applies as well to other governmental agencies adminis-

tering federally financed housing programs. Garrett v.

City of Hamtramck, 503 F. 2d 1236 (6th Cir. 1974); Blackshear

Res. Org. v. Housing Auth. of City of Austin, 347 F. Supp.

1138 (W.D. Tex. 1972). In Otero v. New York City Housing

Authority, 484 F. 2d 1122 (2d Cir. 1973), a case involving

the assignment of tenants to a low-income housing

53. The Court in Shannon held that the decision of HUD was

reviewable under 47 U.S.C. § 3608(d)(5) to determine

whether the affirmative duties required under the Act

had been met. 436 F. 2d at 820.

54

project, the Court stated that the New York City Housing

Authority was “under an obligation affirmatively to

achieve integration in housing,” and that a “source of the

affirmative duty to integrate is found in the 1968 Fair

Housing Act... ." 484 F. 2d at 1133. The Cour: in

Otero pointed out that under Title VIII:

An authority may not, for instance, select

sites for projects which will be occupied by

non-Whites only in areas already heavily con-

centrated with a high proportion of non-Whites

An authority is barred from using assignment

methods which seek to exclude, or have the

evident effect of excluding, persons of minor-

ity races from residing in predominantly White

areas or of restricting non-Whites to areas

already concentrated by non-White residents.

484 F. 2d at 1133. (Citations omitted).

54. Im Otero, a low-income housing oe was constructed -

on @ site which, according to the regulations of the

New York City Housing Authority, required ory former

site residents a priority on admission. If the priority

were followed, the project would be 80% non-White and

20% White in an area which currently had a 50-50 racial

mix. The authority was concerned that such a large

concentration of non-Whites would act as a "tipping"

factor which would precipitate an increase in non-white

ee ag in the ge neighborhoods. The Second

ircuit concluded that the affirmative action obligation

of § 3608(d)(5) precluded adherence to the priority regu-

lation due to the segregating effect:

Such a rule of thumb gives too little weight

to Congress’ desire to prevent segregated

housing patterns and the ills which attend then.

To allow housing officials to make decisions

—- the long range effect of increasing

or ma eee racially eseaeeeee housin

patterns merely because minority groups ll

gain an immediate benefit would render such

persons unwilling, and perhaps unwitcing,

partners in the trend toward ghettoization of

our urban centers. 484 F. 2d at 1134.

The Second Circuit, in Otero, citing Shannon, then stated:

(Wle are satisfied that the affirmative duty

placed on the Secretary of HUD by § 3608(d)(5)

and through him on other agencies acministering

po ney gene ye housing on also re-

quires that consideration be given to the impact

of proposed public housing programs on the

racial concentration in the area in which the

SS housing is to be built. Action must

taken to fulfill, as much as possible, the

goal of open, integrated residential housing

patterns and to prevent the increase of segre-

gation, in ghettos, of racial groups whose lack

— Serene the Act was designed to

combat. ...

The affirmative duty to consider the impact

of publicly assisted housing programs on racial

concentration and to act affirmatively to

romote the policy of fair, integrated housing

s not to be put aside whenever racial

monorities are willing to accept segregated

housing. ‘The purpose of racial integration

is to benefit the community as a whole, not

ust certain of its members. 484 F. 2d at

133-1134.

In Banks v. Perk, 341 F. Supp. 1175 (N.D. Ohio

1972) aff'd in part, rev'd in part on other grounds,

473 F. 2d 910 (6th Cir. 1973), the plaintiffs brought suit

against the City of Cleveland and the Cleveland Housing

Authority. Cleveland was found by the Court to be a raciaily

segregated city. Prior to the date on which the new City

administration took office, it amnounced that it would

oppose pubiic housing in areas where the majority of the

residents were opposed to the project. Two days after

taking office, the administration revoked a building permit

issued to a builder who was planning to build a low income

public housing project in a White area of the City. Twelve

days later, a similar permit was suspended. The Court found

in both instances that the reasons given by the City for

revocation of the permit were without factual basis. The

-59.-

Court found that the City's revocations had a racially

discriminator, effect and violated 42 U.S.C. § 2000d and

42 U.S.C. s 3608(d)(5). As to the City administration's

policy in connection with its support for local communities,

the Court stated:

The aforementioned public pronounce-

ments to oppose public housing in any

areas where the residents are opposed to

it and the City's continued affirmations

of that proposition are contrary to the

netional housing policy. It is the duty

of city administrations in the United

States to support and aid progressive

proposals which have as their goal the

elimination of racial concentrations in

their cities. No matter how a Hn me

authority may try, their aims and goals

amnnot be met without the support and leader-

ship of the administration within the city

it attempts to build public housing. Since

this nation is committed to a policy of

balanced and dispersed public ——e low-

income Blacks can no more be confined to a

concentrated area than that they can be

required to send their children to segre-

gated schools. 341 F. Supp. at 1179.

The Court in Banks also applied the affirmative obligation

requirement of 42 U.S.C. § 3608(d)(5) to the Cleveland

Housing Authority and found that it had not met its obliga-

tion thereunder when it failed to place most of its new

housing projects in White areas of the City. The freedom

of choice plan of the Authority, which was neutral on its

face but resulted in continued racial concentration, could

not stand in light of the affirmative obligations of the

Fair Housing Act. The Court stated that:

CMHA has an affirmative duty to integrate its

housing projects and to be instrumental in

dispersing urban housing patterns. The Fair

Housing Act of 1968, 42 U.S.C. § 3601 et seq.

in establishing a national policy of fair

housing throughout the United States carried

with it the clear implication that local

housing authorities in conjunction with

-60-

Federal agencies responsible for housing

programs are to affirmatively institute

action the direct result of which was to be

the implementation of the dual and mutual

goals or fair housing and the elimination

of discrimination in that housing. 341 F.

Supp. at 1182.5

Other courts have also found violations of the affirmative

duties placed upon HUD and lccal agencies under 42 U.S.C.

§ 3608(d)(5) in circumstances similar to those in this

case. Garrett v. City of Hamtramck, 503 F. 2d 1236 (6th

Cir. 1974); Blackshear Res. Org. v. Housing Auth. of City

of Austin, 347 F. Supp. 1138 (W.D. Tex. 1972); Crow v.

Brown, 332 F. Supp. 382 (N.D. Ga. 1971), aff'd, 457 F. 2d

788 (Sth Cir. 1972).

Each case brought under § 3608(d)(5) requires a

close analysis of the facts peculiar to that case and the

city in which the facts have occurred. Before proceeding

to amalyze the liability of each individual governmental

defendant, it is appropriate to note several significant

factors which form the background against wich the actions

of the governmental defendants involved herein must be

viewed. First, it is beyond question that the City of

Philadelphia is racially segregated, anc was so in 1971

and 1972. It is also clear that the low-income public

housing system operated by PHA is also racially segregated

55. Many of the cases cited herein found violations of both

the Fourteenth Amendment's Equal Protection Clause, 42

U.S.C. § 1981 and § 1983, as well as 42 U.S.C. § 2000d

and 42 U.S.C. § 3608(d)(5). These cases were decided

prior to wits ype v. Davis, U.S. , 96

$.Ct. 2040 (1976), which held that racially discrimina-

tory intent or purpose was required to establish a

constitutional violation, However, each of these

decisions did find a violation of the affirmative duty

of governmental agencies under 42 U.S.C. § 3608(d)(5).

6%

with those projects located in Black areas being populated

by predominantly Black tenants, while those in White areas

are populated by predominantly White tenants. Further, 31

of the 40 PHA projects, or 77% of the PHA projects, are

currently located in racially impacted areas of Philadelphia

while only 9 of the 40, or 23% of the PHA projects are

currently located in non-impacted areas. (N.T. 53-21).

Moreover, the evidence presented clearly establishes that

the overwhelming majority of the scattered site houses

acquired by PHA are located in racially impacted areas of

Philadelphia, a process which reinforces segregation both

‘in the City of Philadelphia and in the low-income public housing

syetem, (N.T. 38-55).°° ‘the public housing system

operated by PHA is predominantly Black. As of 1974, 90.8%

of the persons residing in conventional housing projects

(those units which were not scattered site) were non-White. 5’

While one would expect that most PHA conventional projects

would have a non-White population reflecting the Black

population of the entire PHA low-income public housing

system, four projects located in predominantly White areas

of Philadelphia have a predominantly White tenant population.

(N.T. 53-39, Exhibit D-26). 96.8% of che scattered site

a

56. Defendants’ expert testified that 82% of the scattered

site units operated by PHA are located in racially

impacted areas of Philadelphia, i.e., areas with a

minority concentration of over 40%. (N.T. 51-136). Of

the 8,235 total scattered site units operated by PHA,

6,747 are located in racially impacted areas. (Exhibic D-32).

57. Of the total 47,313 persons residing in conventional

public ex); projects as of 1974, 42,950 were non-White.

(Exhibit D-28

-62-

units in Philadelphia are populated by racial minorities,

with, as pointed out above, 82% of these being located in

racially impacted areas of the City. Furthermore, the

clearance by PHA and RDA which took place o and around the

Whitman site, coupled with the cancellation of the Whitman

Park Townhouse Project, has reinforced segregation in

Philadelphia. Because of the clearance, which led to the

displacement of Blacks from a fairly integrated pocket in

the Whitman area, Whitman has become more segregaced than

prior to governmental intervention.

The cancellation of the Whitman Park Townhouse

‘Project had a racially disproportionate effect, adverse to

Blacks and other minorities in Philadelphia. The waiting

list for low-income public housing in Philadelphia is

composed primarily of racial minorities. Of the 14,000 to

15,000 people on the waiting list for public housing in

Philadelphia, (N.T. 56-84), 85% are Black, and 95% are

considered to be of racial minority background. (N.T.

40-103). Obviously those in housing projects, which are

overwhelmingly Black, and those on the public housing

waiting list, are those least able to move out of the poorer,

racially impacted areas of Philadelphia. The evidence also

established that Blacks in Philadelphia who are concentrated

in the three major Black areas of Philadelphia, have the

lowest median income in comparison with the total population

of Philadelphia and live in the poorest housing in

Philadelphia. The Whitman Park Townhouse Project was a

unique opportunity for these Blacks living in racially

impacted areas of Philadelphia to live in an integrated,

non-racially impacted neighborhood in furtherance of the

national policy enunciated in Title VIII of the Civil

Rights Act of 1968. Public housing offers the only opportun-

ity for these people, the lowest income Black households,

to live outside of Black residential areas of Philadelphia.

Cancellation of the project erased that opportunity and

contributed to the maintenance of segregated housing in

Philadelphia.

1) City of Philadelphia

We find that, in view of the pattern of racial

segregation which prevailed in both private and public

housing in Philadelphia, the City of Philadelphia has not,

under the facts of this case, met its duty of affirmatively

implementing the national policy of fair housing and has

violated Title VIII:afthe Civil Rights Act of 1968. Initially,

we find that the policy of the current administration to

support local communities in their opposition to projects

in their neighborhoods without consideration of the effect

of such support or the basis of the opposition to the

proposed project is contrary to the overriding national

policy to further integration in housing. Banks v. Perk,

341 F. Supp. 1175, 1179 (N.D. Ohio 1972), aff'd in parc,

rev'd. in part on other grounds, 473 F. 2d 910 (6th Cir.

1973). We do not intimate that local governmental officials

should not be sensitive to the desires of their constituents

on whose support they depend for election. However, in

respecting the desires of the local communities, governmental

officials are not free to ignore the law and override a

national policy of fair housing as enunciated in Ticle VIII

-64-

of the Civil Rights Act of 1968, Further, the specific

pledge of support by Mayor Rizzo to WAIC in their fight to

stop the Whitman Park Townhouse Project encouraged that com-

munity not only to continue their opposition, but to amplify

it. \

Mayor Rizzo asserted in his testimony that his

policy is racially neutral and that his actions are taken

without a view toward any particular race, He candidly stated

in connection with the potential effects of his action on

racial minorities that:

I would have to say that never entered ay

mind, But thinking it over, I would say

there is a possibility that that might af-

fect the minorities, that they might be

shortchanged, but it would not change ay

position, (N.T, 42-83, 42-84), .

Such “color-blindness" does not comply with the mandates of

affirmative action required by Title VIII. Shannon v. HUD,

436 F. 24 809 (3d Cir, 1970). Also Deputy Mayor Phillip

Carroll, who was assigned by Mayor Rizzo to handle the

Whitman controversy, testified that he was not aware of the

racial composition of public housing in Philadelphia, (N.T.

25-49). Such unawareness or insensitivity to racial prob-

lems on the part of a public official does not comply with

the affirmative duties imposed by Title VIII.

The City has consistently argued throughout this

case that it does not build public housing and is under no

duty to do so, However, the facts show that the cooperation

of the City Administration is required to construct a housing

pveeren. Further, as the facts here graphically illustrate,

the City was capable of preventing the construction of a pub-

lic housing project which had been approved and was under

The City had a duty to encourage and cooperate

in the building of public housing which would foster fair

housing. Banks v. Perk, supra, at 1185. However, the

facts of this case establish that rather than cooperate in

building the project, two City Administrations interfered

with and accomplished the termination of its construction.

This non-cooperation began with the Tate Administration's

stated intention to refuse to supply Multicon with police

assistance at the Whitman site and was manifested by the dispute

over the building of fences and sidewalks, Opposition was further

manifested by the City's attempts to halt construction,

its encouragement of local opposition to the Whitman Park

Townhouse Project, its efforts to obtain an injunction,

its encouragement of a June 22, 1972 RDA resolution declar-

ing the, Multicon contract void ab initio, its action to keep

HUD out of the Whitman controversy, and by eventually paying

damages to Multicon rather than insisting that Multicon

fulfill its contract. In view of the heretofore

described racial segregation in housing in Philadelphia,

we find that these activities do not comply with the affirmative

action requirements of Title VIII, 42 U.S.C. § 3608(d) (5)

and are in violation of that section. ,

The City argues that the threatened violence on

the part of the citizens surrounding the Whitman project,

should construction of the project have been permitted to

resume, justified action on their part to halt construction

of the Whitman Park Townhouse Project. However, it is

well established that a history of tension or violence does

not excuse the denial of civil rights. Palmer v. Thompson.

403 U.S. 217 (1971); Cooper v. Aaron, 358 U.S. 1 (1958);

-66-

Gautreaux v. Chicago Housing Authority, 296 F. Supp. 907

(N.D. TLl. 1969) aff'd, 436 F. 2d 306 (7th Cir. 1970),

cert. denied, 402 U.S. 922 (1971).

2) Redevelopment Authority of the City of Philadelohis

RDA has, throughout the trial of this case, taken

a position similar to that of the City of Philadelphia, i.e.,

that RDA does not build low-income public housing, md that

therefore, they should not be held responsible for any

actions taken in this “public housing” case. We find,

however, that RDA was irtimately involved in the construction

of the Whitman Park Townhouse Project and in the entire

Whitman Urban Redevelopment Area. RDA became enmeshed in

the Whitman project as a result of the Barrett Amendment which

allowed a writedown of the value of the land previously owned

by PHA and permitted lower density housing to be built

on the site. Thereafter, RDA entered into a construction

contract with Multicon for construction of the Whitman

Townhouse Project.

Since RDA was involved in the construction of a

federally funded housing project, RDA had the same affirma-

tive duty to achieve integration under 42 U.S.C. § 3608(d) (5)

as did the City of Philadelphia. However, RDA did nothing

to encourage the building of the Whitman Park Townhouse

Project. Rather,RDA succumbed to the pressure to hinder

construction and void the contracts between it and Multicon.

On April 28, 1972, it passed a resolution authorizing its

general counsel to take action in connection with any

default by Multicon. Thereafter, on June 22, 1972, it

-67-

took two unusual actions in connection with the Whitman Park

Townhouse Project. First, in the lawsuit brought by WAIC,

it withdrew its requested finding of fact which stated that

it had met all the procedural legal requirements for building

the Whitman Park Townhouse Project, a position it had stead-

fastly maintained throughout the trial. Second, it passed

an unusual resolution declaring that its contract with Multi-

con was void ab initio for lack of citizen participation.

These actions were taken without any effort to have Multicon

honor its construction contract and have the project constructed.

Furthermore, RDA aust be charged with the knowledge that its

clearance procedures in connection with the Whitman Urban

Renewal Area, combined with PHA's clearance for the Whitman

site, led to more segregation in the area surrounding the

Whitman Park Townhouse Project. This course of conduct, viewed

in its context of a racially segregated city, does not comply

with the affirmative duties required of RDA and is in viola-

tion of 42 U.S.C, §3608(d)(5).

3) Philadelphia Housing Authority

It is clear that PHA has an affirmative duty to

integrate its housing projects and be instrumental in dis-

persing urban housing patterns. Banks v. Perk, 341 F. Supp.

1175 (N.D, Ohio 1972), aff'd in part, rev'd in part on other

grounds, 473 F. 2d 910 (6th Cir, 1973). As stated in Banks,

supra;

The Fair Housing Act of 1968, 42 U.S.C.

§3601 et seq., in establishing a national

policy of fair housing throughout the

United States carried with it the clear

implication that local housing authocicies

in conjunction with Federal agencies

responsible for housing programs are to

affirmatively institute action the direct

result of which was to be the implementa-

tion of the dual and mutual goals of fair

housing and the elimination of discrimin-

ones of that housing. 341 F. Supp. at

As noted herein, PHA maintains a racially segregated low-

income public housing system. Although operating under a

freedom of choice plan now, little if any progress has

been made toward the integration of its housing system.

Where a freedom of choice plan fails to achieve integration,

but preserves the effects of past racial segregation, a

more realistic plan must be developed. Green v. County

School Board of Kent County, 391 U.S. 430 (1968); Banks v.

Perk, supra. *®

In connection with the Whitman Park Townhouse Project, th

evidence establishes that PHA planned the project and

cleared the area, creating a more racially segregated

Whitman area. On April 28, 1972, in response to RDA's

resolution of that day, PHA wrote RDA and stated that as of

58. In Banks, the Court stated that:

Within the framework of their freedom of choice plan,

CMHA must act as affirmatively as they cam to act as

real estate brokers to convince east side residents to

move into scattered-site homes on the west side. CMHA

and the Administration of the City of Cleveland are

with the leadership of this proposal to

integrate housing patterm in Cleveland. Since CMHA is

on ; with the building of ee See. tS

r duty to devise te po s plans

te is the oblig

in this area. ligation of the City to

support CMHA, to them in every way, and to

aid in the integration of the hous patterns of the

City with all ics strength. 341 F. . at 1185.

“69 -

construction proceeded with the Whitman Park Townhouse Pro-

ject, which HUD determined met the equal opportunity guide-

April 29, 1972, Multicon would be in default. This impend-

2 lines. Morton Addition was built while Whitman, a project

ing default was never communicated to Multicon. PHA has

which would have furthered integration in Philadelphia, was

maintained throughout this litigation that it is ready to

not built. In short, HUD heeded the suggestion from Washing-

proceed with the Whitman Park Townhouse Project, which

. ton to keep a "low profile” in the dispute after the Rizzo

would be an affirmative step toward desegregation of its hous-

Administration wrote its letter criticizing HUD to a member

ing system. It has not done so. It has not proposed a plan,

of President Nixon's White House staff, (N.T. 12-30 to 12-33,

mor has it taken any action aimed at desegregating its racially °

: 59 ; 45-21, 45-22). Keeping a "low profile" is not in keeping

segregated public housing systen. We find that PHA has not .

‘ ° with the affirmative duty specifically placed upon HUD by

F met its affirmative obligation under 42 U.S.C. §3608(d)(5).

° the Fair Housing Act of 1968. Shannon v. HUD, 436 F. 2d 809

; 4) nt of Hous and Urban el at (3d Cir. 1970). HUD failed to use the resources of the fed-

We likewise find that HUD is liable under Title eral government in an effort to have the Whitman Park Town-

VIII of the Fair Housing Act, 42 U.S.C. §3608(d)(5). The house Project constructed. We find that HUD has not met its

evidence is clear that HUD was aware that the other defend- affirmative obligation under 42 U.S.C. §3608(d)(5).

ants were not in compliance with the Fair Housing Act of 1968

b) Racial Effect

in their opposition to the Whitman Park Townhouse Project

Plaintiffs contend that proof that the action of

(NLT. 44-48, 45-20, 45-21, Exhibit P-113) and that there

the governmental defendants had a racially discriminatory

was racial motivation involved in the opposition to the

effect, makes out a prima facie case of a violation of

project. (N.T. 44-48 to 44-52, Exhibit P-90). HUD was

Title VIII of the Civil Rights Act of 1968 and thereby

asked by Multicon on several occasions to intervene on .

X shifts the burden to the defendants to show a compelling

, behalf of Multicon to aid in in constructing the project, .

governmental interest justifying their action. Prior to,

but provided no assistance. (N.T. 35-43, 35-44, 4-44).

. and during the trial of this case, pidtntiffs also contended

Moreover, under HUD's own equal opportunity determination,

: that proof of governmental actions having a racially dis-

. Morton Addition, a project located in a Black racially

criminatory effect would likewise establish a cause of action

impacted area of Philadelphia, was to be built only if

, under the Fifth, Thirteenth and Fourteenth Amendments as

well as 42 U.S.C. §§1981 and 1983. However, in Washington

59. The failure of PHA to proceed on its own with the

Whitman Park Townhouse Project may be strong evi- v. Davis, U.S. » 96 S. Ct. 2040

dence that the support of-the City Administration i.

? , required for a housing program to proceed.

afi.

(1976), the Supreme Court held that a disproportionate

racial effect was not sufficient by itself to establish a

constitutional violation under the Equal Protect:.n Clause

in an employment discrimination case. The Supreme Court

distinguished Title VII liability and the standard of proof

thereunder, from the standard of proof required to establish

a constitutional violation, under which the plaintiffs were

required to show a discriminatory purpose on the part of

the defendants.

of Washington requires them to abandn their contention that

Plaintiffs have conceded that the holding

disproportionate racial effect is sufficient to establish

a prima facie case in connection with the constitutional

violations they alleged.

y.Ss.

See Washington v. Davis,

, 96 S. Ct. 2040, 2050 (1976). We agree with

the plaintiffs, however, that the prima facie case concept

applicable to cases brought pursuant to Title VI1 of the

Civil Rights Act of 1964 is for the reasons hereinafter

discussed, applicable to violations of Title VIII of the

1968 Act. °°

discriminatory housing practices by both public and private

The Fair Housing Act proscribes a wide range of

60.

Nothing in Washington undermines the racial effect

tie

standard for

I cases enunciated in Griggs v.

Duke Power Co., 401 U.S. 424 (1971). See U.S.

, 96 S. Ct. 2040, 2047, n. 10 (1976). In Griggs,

Chief Justice Burger stated:

The Act proscribes not only overt discrimination

but also practices that are fair in form, but

discriminatory in operation.

business necessity. If an employment practice

which operates to exclude Negroes cannot be

‘shown to be related to job

practice is prohibited.

-72-

4

ol

The touchstone is

rformance, the

U.S. at 431.

«

parties. These acts range from a party's outright refusal

to rent or sell on the basis of race to discrimination in

terms and conditions of housing which will “otherwise, make

unavailable or deny" a dwelling on racial grounds. See

42 U.S.C. §§ 3604(a), 3604(b), 3605, 3606. The Supreme

Court has noted that "(t]he language of the Act is broad

and inclusive" and requires a “generous construction."

Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205,

209, 212 (1972). Lower Courts have also agreed that the

Act is to be liberally construed in accordance with the

national policy in favor of fair housing. United States v.

Hughes Memorial Home, 396 F. Supp. 544, 548 (W.D. Va. 1975);

Zuck v. Hussey, 394 F. Supp. 1028, 1047 (E.D. Mich. 1975);

United States v. Real Estate Development Corp., 347 F. Supp.

776, 781 (N.D. Miss. 1972). Moreover, it is well established

that “civil rights statutes should be read expansively in

order to fulfill their purpose." Mayor v. Ridley, 465 F.2d

629, 635 (D.C. Cir. 1972) (Wright, J., concurring) citing

Griffin v. Breckenridge, 403 U.S. 88, 97 (1971). We have

heretofore discussed the legislative history of the Act

which shows that in enacting the Fair Housing Act, Congress

was aware that its past attempts to end racial discrimination

in housing had failed and that affirmative action was

required. Furthermore, the legislative history of the Fair

Housing Act demonstrates that Congress was aware of the

proof problems inherent in establishing racial intent.

During debate on the Act, Senator Baker introduced an

amendment which would have exempted from liability any

homeowner who engaged a real estate agent “without indicating

any preference, limitation or discrimination based on

-73-

The courts will look beyond the form of a

transaction to its substance and proscribe

practices which actually or predictably

race . . . or an intention to make any such preference result in racial discrimination, irrespective

of defendant's motivation. 499 F, 2d at 826.

-" 114 Cong. Record 5214. Senator Percy opposed

the amendment stating that: Other courts have held that the prima facie case concept ap-

If I understand this amendment, it would ‘ plies to Title VIII and that effect and not motivation gov-

require proof that a single homeowner had

oa racial preference. I maintain ernssuch cases. United States v. Pelzer Realty Co., Inc., |

that proof would be impossible to produce.

114 Cong. Record 5216. 484 F. 2d 438, 443 (5th Cir. 1973), cert. denied, 416 U.S.

The amendment was rejected by the Senate. . 936 (1974); United Farmworkers of Florida Housing Project,

'

PORAS UO e PIGTERE See Sten Ceeteses Se ‘ sIne,_v, City of Delray Beach, 493 F. 2d 799, 808 (Sth Cir.

Washington, it was well established that the racial effect r oa,

2 _ 1974); Barrick Realty, Inc. v, City of Gary, 491 F. 2d 161

test was applicable to Title VIII of the Civil Rights Act of

(7th Cir. 1974); United States v, Real Estate Development

1968. In United States v. City of Black Jack,508 F.2d

1179 (8th Cir. 1974), cert. denied 422 U.S. 1042 (1975), Corp., 347 F. Supp. 776, 782 (N.D. Miss. 1972); Zuck v. Hussey,

the Eighth Circuit held that Title VIII was designed to 394 F. Supp. 1028, 1047 (E.D. Mich. 1975); United States v.

remove artifical barriers in housing and that proof of Hughes Memorial Homes, 396 F. Supp. 544, 548 (W.D. Va. 1975).

racial intent was not required under the Act. 508 F.2d Likewise, in Shannon v. HUD, 436 F. 2d 809 (1970), our Third

at 1164. The court then stated that: Circuit stated that Title VIII required that HUD "look at

The burden of proof in Title VIII cases

is governed by the concept of the “prima facie the effects of local planning action... to prevent dis-

case." To establish a prima facie case of

racial discrimination the plaintiff need prove crimination in housing resulting from such action." 436 F.

no ef than ene no Png gee Pay ee

actua or predictably results in racia :

y= feos on Mine oy in pore gprs wy chat ic has ” 2d at 816. These cases, read in light of the legislative

a aa acai tamenive 4 = ge ge dw ya * s Aistory of Title VIII and its remedial purpose convince this

resulting in racial discrimination in housing : ,

was racially motivated. Effect, and not . Court that the racial effect test and the prima facie case

motivation, is the touchstone .

: . concept continue applicable to actions brought pursuant to

Once the plaintiff has established a

rima facie case by demonstrating racially

Sioertaiastery effect, the burden shifts to Title VIII of the Civil Rights Act of 1968.

the governmental defendants to demonstrate

that its conduct was necessary to promote a An analysis of the facts relevant to this theory

compelling governmental interest. 508 F. 2d

at 1184-1185. (Footnotes and citations omitted). . of liability in connection with the governmental defendants

Earlier the same court, in Williams v. Mathews need not detain us long. As stated herein, there is no

Co., 499 F.2d 819 (8th Cir.) cert. denied, 419 U.S. 1021 : question that the actions of these defendants in terminating

ion with Title VIII that: ee feet ,

ee any ee ’ the Whitman Park Townhouse Project had a racially discrimin-

: atory effect. Our analysis in connection with this finding

Fhe

is found at page 63 of this opinion and need not be repeated

here. As pointed out herein, it is clear from this record

that the actions of the City of Philadelphia, RDA and PHA

in terminating the Whitman Park Townhouse Project, taken

against the background of racial segregation in Philadelphia

and in the PHA system, had a disparate racial effect.

Wright v. Council of City of Emporia, 407 U.S. 451 (1972).

Having established that the actions of the City,

RDA and PHA in terminating the Whitman Park Townhouse

Project had a racially discriminatory effect, the burden

shifted to the defendants to establish a compelling govern-

mental interest which would justify such action. The only

justification advanced Ly any party for the action taken

by the defendants was that of the City. The City argued

that its actions in terminating the project were required

because of threatened violence. The United Scates Supreme

Court has consistently held that threats of violence or

unrest by some citizens cannot justify depriving those of

minority background of their constitutional rights. Cooper v.

Aaron, 358 U.S. 1 (1958). "Citizens may not be compelled

to forego their constitutional rights because officials

fear public hostility... ." Palmer v. Thompson, 403

U.S. 217, 226 (1971) (dictum). See Wright v. Georgia, 373

U.S. 284, 293 (1963); Buchanan v. Warley, 245 U.S. 60

(1916). Moreover, we note the excellent record that the

Civil Disobedience Unit of the Police Department of the

City of Philadelphia has established in connection with

potential disruptions of the peace. Indeed, in this case

Inspector Fencl, the able head of the Civil Disobedience

Unit, testified that the Philadelphia Police Department

could control any disturbance in connection with the Whitman

-76-

Park Townhouse Project and could have seen that construction

was completed. (N.T. 49-146, 49-147).

We find that the plaintiffs have established that

the actions of the City of Philadelphia, RDA and PHA had a

racially discriminatory effect which was not justified by

any compelling governmental interest, and constitute a viola-

tion of Title VIII of the Civil Rights Act of 1968,

c) Racial Intent

It is, of course, beyond question that the denial

of housing with a racial purpose or motivation is illegal.

If such racially motivated actions are taken by an official

of a governmental body, those actions violate the Thirteenth

and Fourteenth Amendments as well as 42 U.S.C. §§ 1981 and

1982. Further, a governmental agency which denies housing

on the basis of race violates 42 US.C § 2000(d) et seq.,

and 42 U.S.C. § 3601 et seq. Private action denying housing

on the basis of race violates 42 U.S.C. §§ 1981 and 1982.

Runyon v. McCrary, 44 U.S.L.W 5034 (June 25, 1976); Jones v.

Alfred H. Mayer Co., 392 U.S. 409 (1968); Gatreaux v.

Chicago Housing Authority, 296 F. Supp. 907 (W.D. Ill.

1969), aff'd 436 F.2d 306 (7th Cir. 1970), cert. denied,

402 U.S. 922 (1971). Although it is not enough to estabiish

racial discriminatory purpose to show solely that actions

taken had a racially discriminatory impact, “disproportionate

[racial] impact is [not] irrelevant" to prove an invidious

discriminatory purpose which “may often be inferred from

the totality of the relevant facts." Washington v. Davis.

U.S. , 96 S. Ce. 2040, 2048, 2049 (1976).

Mr. Justice Stevens, concurring in Washington states

-77-

succinctly the role that proof of the ultimate consequences

of actions plays in determining racial motivation:

Frequently the most probative evidence

of intent will be objective evidence of what

actually happened rather than evidence describ-

ing the subjective state of mind of the actor.

For normally the actor is presumed to have

intended the natural consequences of his

deeds. This is particularly true in the case

of governmental action which is frequently

the product of compromise, of collective

decisionmaking, and of mixed motivation, It

is unrealistic, on the one hand, to require

the victim of alleged discrimination to

uncover the actual subjective intent of the

decisionmaker or, conversely, to invalidate

otherwise legitimate action simply because

an improper motive affected the deliberation

of a participant in the decisional process,

U.S. » 96S. Ct. at 2054,

With these principles in mind we will proceed to snalyze

the proof of racial motivation of WAIC and the City of

Philadelphia.

1) Whitman Area Improvement Council

We find that the evidence does not support a

finding that the opposition to the Whitman Townhouse Project

by WAIC was substantially ractai.°= We make this finding,

although we are well aware that many of the comments made

by the demonstrators and picketers at the Whitman site and

at WAIC meetings displayed racial bias toward the potential

residents of the Whitman Park Townhouse Project. (N.T, 33-106,

33-118, 34-4, 34-6, 17-73, 49-126, 49-130, 21-10). At trial,

some witnesses from the Whitman Area who were members of WAIC

testified that they were opposed to the Whitman project be-

cause it would move

61. All residents within the boundaries of the Whitman

Urban Renewal Area are members of WAIC.

_ -

Blacks into the neighborhood and would lead to mixed

marriages. (NT. 54-91, 54-92, 28-13, 28-14, 28-15, 28-85).

Furthermore, we find that some of the reasons given by WAIC for its

opposition to the Whitman Park Townhouse Project lack

substance. Banks v. Perk, 341 F. Supp. 1175, 1178-79

(N.D. Ohio 1972) aff'd in pert, rev'd in part on other

grounds, 473 F.2d 910 (6th Cir. 1973). Early in the planning

stages for the Whitman Park Townhouse Project, WAIC opposed the

project because of its design. However, a special Amendment

of Congress was passed to accommodate a change in design

from high-rise to low-rise construction. After these

changes were made, PHA and Multicon made other design

changes, including back alleys, a change in windows for

fire safety and creation of a recreation area, which met

the objections of WAIC. WAIC also opposed the project

because they felt that all housing projects were inherently

unsafe and unsanitary. However, they presented no evidence

to justify such a finding. Indeed, the Whitman Park Town-

house Project was sufficiently unique in its low-rise

design and home-ownership features to destroy any generaliza-

tion about all housing projects. Also, PHA agreed to allow

a screening committee, which would include WAIC members,

to screen che prospective occupants of the Whitman Townhouse

Project. WAIC also opposed the project because persons

with low incomes, making no down payments, would be able

to live in homes allegedly more expensive than theirs,

i.e., that those who were to live in the Whitman Park Town-

house Project were “getting something for nothing." This

record reveals that the Whitman community received and

accepted over $11 million in urban renewal funds and over

-9-

$2.7 million in rehabilitation loans and grants over a ten-

year period, (N.T, 2-21, 57-22). It is difficult to accept

WAIC's purported opposition to low-income minority citizens

receiving benefits, while they themselves were a leader in

the nation in terms of funds given to an urban renewal area.

(NT. 20-17). Moreover, it is well established as a matter

of law that in the area of economic and social welfare, a

governmental body need not treat all groups identically so

long as its distinctions are rationally based. Dandridge

ve Williams, 397 U.S. 471 (1970). Finally, WAIC opposed the

Whitman Park Townhouse Project because it claimed in-

sufficient citizen participation by it in the decision to

build. However, the evidence clearly establishes that WAIC

participated in all stages of the Whitman Park Townhouse Pro-

ject,

2) The City of Philadelphia

It is clear from the testimony that certain offi-

clals of the City were aware of the existence of some racially

motivated opposition to the Whitman Park Townhouse Project,

The evidence is uncontradicted that Mayor Rizzo, both before

and after taking office in January of 1972, considered pub-

lic housing to be Black housing and took a stand against plac-

ing such housing in White neighborhoods, Further, the City

must be charged with knowledge of the fact that, as pointed

out herein, the cancellation of the Whitman Park Townhouse

Project had an obvious disparate effect on the Black com-

munity and that the natural consequences of the action

taken by the City would be to produce (hat

disparate impact. Washington v. Davis, U.S.

96 S. Ct, 2040, 2054 (1976) (Stevens, J., concurring). Act-

ing with such intent constitutes violation of the Thirteenth

and Fourteenth Amendments and the Civil Rights statutes enunm-

erated herein.

The Remedy

The evidence in this case establishes that certain

defendants have committed both constitutional and statutory

violations in connection with the stoppage of construction

of the Whitman Park Townhouse Project. As the facts outlined

herein establish, this action was taken against a background

of racial segregation both in the City of Philadelphia and

in the housing system of PHA, The Whitman Park Townhouse

Project would have been a step by the governmental defendants

toward the desegregation of both the City of Philadelphia

and the PHA system and would have been in conformance with

the governmental defendants’ statutory obligation under

Title VIII to take affirmative action to achieve fair housing.

Further, as set out herein, halting the Whitman Park Town-

house Project led to further segregation in the Whitman Area

while perpetrating racial segregation in Philadelphia and

the PHA system,

Federal District Courts have broad equitable

powers to remedy constitutional violations. Hills vy.

Gautreaux, U.S. » 96 S. Ct. 1538 (1976).

We see no reason why these same equitable powers should not

apply to violations of the affirmative duties imposed by

the Civil Rights Act of 1968, 42 U.S.C. §3601, ot feg.,

which was passed in part in an effort to enforce the

Thirteenth and Fourteenth Amendments as well as the

Commerce Clause of the U. S. Constitution, United States

vy. City of Black Jack, 508 F.2d 1179 (8th Cir. 1974),

cert. denied, 422 U.S. 1042 (1975); 114 Cong. Record

2273. As stated by the United States Supreme Court in

an oft -quoted citation: ;

Once a right and violation have been

shown, the scope cf a district court’

equitable —_- to remedy y pose wrong ;

is broad, breadth and f exibility are

inherent is equitable remedies. v.

Indeed, when faced with a civil rights violation, a United

States District Court has not merely the power but the

duty “to remedy the effects of past violations as well «s

bar similar violations in the future." Louisiana v. United

States, 380 U.S. 145, 154 (1965). Of course, equitable

powers may be exercised only on the basis of a found

violation. Rizzo v. Goode, U.S. , 96S.

Ct. 598 (1976); but once a violation is found all reasonable

methods are available to formulate an effective remedy

to achieve the greatest possible degree of relief given

the practicalities of the situation. Hills v. Gautreaux,

U.S." , 96 &. Ce. 1538, 1546 (1976). Injunctive

relief must be framed to remedy the wrong claimed by the

party and narrowly tailored to remedy the specific harm

shown. Hart ford-Empire Co. vy, United States, 323 U.S.

386, 410 (1945); Davis v. Romney, 490 F.2d 1360, 1370

(3d Cir. 1974). Im trying to formulate appropriate guide-

lines to guide United States District Courts in connection

with the tailoring of equitable relief, the United States

-§2-

¢

Supreme Court has stated that:

Wlords are r instruments to convey the

—— of basic fairness inherent ia - and

ag nee semantics. aust C

In housing discrimination cases the federal courts

have consistently shown cheir willingness to exercise

their broad equitable powers to remedy constitutional and

statutory violations. See, , Dailey v. City of Lawton,

425 F.2d 1037 (10th Cir. a; (order requiring the

issuance of building permits); Banks v. Perk, 341 F. Supp.

1175 (N.D. Ohio 1972), aff'd in part, rev'd in part on

other grounds, 473 F.2d 910 (6th Cir. 1973) (enjoining the

City from planningor building any future public housing

in Black neighborhoods); Hills v. Gautreaux, ____ U.S.

, 96 S. Cr. 1538 (1976) (ordering defendants to

submit a comprehensive plan to remedy the segregated public

housing system in the City of Chicago); United States v-.

City of Black Jack, 508 F.2d 1179 (8th Cir. 1974) cert.

denied, 422 U.S. 1042 (1975) (permanent injunction

restraining officials from enforcing a zoning ordinance

which had precluded the buildingof low and moderate income

housing project); Garrett v. City of Hamtramck, 335 F.

Supp. 16 (E:D. Mich. 1971), aff'd in part and rev'd in

part, 503 F.2d 1236 (6th Cir. 1974).

In fashioning appropriate equitable relief in

this case, the Court does not wish to become 4 “housing

czar" in the City of Philadelphia, nor does it intend to appro-

priate the role of the legislative bodies whose proper functicn

it is to pass legislation and establish local policy in

connection with public housing. It is not the Court's

-83-

intention to inject itself into the internal affairs of the

defendants by controlling low-incom- public housing in Phila-

delphia. We are well aware of the Supreme Court's admonition

in Rizzo v. Goode, U.S. , 96 S. Ce. 598,

607 (1976), that “federal courts must be constantly mindful

of the ‘special delicacy of the adjustment to be preserved

between federal equitable power and State administration of

its own law.*" Where injunctive relief is sought, the prin-

ciples of equity, comity and federalism must restrain a fed-

eral court where the injunctive relief is sought against those

in charge of the executive and legislative branch of local

government such as the defendants in this case. 96 S. Ct.

at 608.

The plaintiffs in this case have asked this Court

to order the defendants to build the Whitman Park Townhouse

Project as planned. The defendants, however, have argued

that the project should not be built as planned but that,

if this Court finds liability, it should order the defendants

to spend the funds initially appropriated for construction

of the project on “scattered site” housing in the City of

Philadelphia. They have presented convincing arguments that

scattered site housing will be more effective than the tra-

ditionally large housing project in accomplishing racial in-

tegration. Apparently, the City of Philadelphia now has a

policy of obtaining scattered sites and rehabilitating them

for public housing rather than building the traditionally

large public housing project. Although the Court is inclined

to agree that "scattered site” housing may be more effective

in accomplishing racial integration than a large public housing

project, we are of the opinion that on ‘he basis of this record

the Court must order the building of the Whitman Park Town-

house Project as originally planned.

Where specific projects have been planned, and

racial discriminatory conduct has precluded the development

of the project, the courts have consistently enjoined the

discriminatory conduct and ordered the project built. For

example, in U.S. v. City of Black Jack, 508 F. 2d 1179 (8th

Cir, 1974), cert. denied, 422 U.S. 1042 (1975), the Court

held that under Title VIII of the 1968 Fair Housing Act a

local ordinance had a racially discriminatory effect in

preventing a low and moderate income housing project in a White

area from being built. The Court enjoined the enforcement

of the ordinance so the planned project could be built. In

v, City o » 425 F. 2d 1037 (10th Cir. 1970),

the Circuit Court affirmed the district court's order requiring

a building permit to be issued so that a low income housing

project could be built. The district court had found that

the denial of the building permit for a housing project in

a White area was racially discriminatory and ordered that

this bar to the project (denial of permit) be removed in order

for the project to be built. In Banks v. Perk, 341 F. Supp.

1175 (N.D. Ohio 1972), aff'd in part, rev'd in part on other

grounds, 473 F. 2d 910 (6th Cir. 1973), the district court

held that the revocation of building permits for the building

of public housing projects in White areas was racially dis-

criminatory and ordered the issuance of "all necessary building

-85-

permits to enable the prompt commencement of construction

of the planned public housing units.” Banks, supra, 341 F.

Supp. at 1180. Moreover, in United Farmworkers of Florida

Housing Project, Inc, v. City of Delray Beach, 493 F. 2d 799

(5th Cir. 1974), the court held that the City of Delray Beach's

refusal to allow a proposed low-income housing project to

tie into its existing water and sewer systems was racially

discriminatory and ordered the City to allow the project to

tie into the water system so that the housing project could

proceed. In each of the above cases, a planned low or mod-

erate income housing project was stopped in its planning stages

because of a zoning ordinance, a refusal to grant building

permits and a refusal to be allowed to be tied into a water

line. In each case, the court found the impediment to the

project to be racially discriminatory and ordered it to be

removed so that the project could be built.

It was the failure of the defendants to build the

Whitman Park Townhouse Project and the defendants' actions

in connection therewith which we have found to be in viola-

tion of the Constitution and Title VIII of the Civil Rights

Act of 1968. Such violations empower this Court to order

the defendants to immediately proceed with the construction

of the Whitman Park Townhouse Project.

The building of the Whitman Park Townhouse Project

will, at a minimum, lead to the re-establishment of the ra-

cial balance which existed in the Whitman area prior to the

clearance which took place by both PHA and RDA in connection

with the planning of the Whilman Park Townhouse Project and

the Whitman Urban Renewal Area. As noted herein, prior to the

Whitman Park Townhouse Project was fairly well integrated,

but because of the clearance, the area became more segregated.

In light of the present racial composition of public housing

in Philadelphia and the waiting list for public housing, build-

ing the project as proposed can be expected to re-establish

the racial balance in the area of the Whitman project.

The proposed Whitman Park Townhouse Project has

many characteristics which make it unique and are designed

to avoid the problems which have accompanied the traditional

housing project. First, the proposed project is of a low-rise

. townhouse design with a low density for a public housing pro-

ject. Such design will fit comfortably in the context of

the surrounding area, which is predominantly row houses of

similar design. Also, the project is designed so that the

occupants can eventually obtain ownership of their homes.

This unique feature is designed to encourage proper mainten-

ance and care of the units which have been problems in the

traditional high-rise project.

There was testimony concerning the potential racial

composition of the Whitman Park Townhouse Project. All par-

ties stated their concern that the Whitman Park Townhouse

Project should not have an all-Black population which would

create an island of Black people surrounded by a sea of White

people. It is for this reason that all the parties in this

litigation have suggested that the project should be integrated.

Indeed, the experts testifying for both plaintiffs and de-

~87-

fendants agreed that the occupancy of the Whitman Park Town-

house Project should not be overwhelmingly Black. (N.T.

41-98, 41-99, 52-128, 52-129, 53-82).

We find that the present policies of PHA which it

characterizes as a "freedom of choice" plan have not only

failed to accomplish integration but have perpetuated racial

segregation. The Court will therefore order PHA to submit

a proposal concerning the racial composition for the Whitman

Park Townhouse Project when constructed, together with a plan

which will further integration in all public housing projects

within the City of Philadelphia.

The plaintiffs have asked this Court to order the

governmental defendants to provide all necessary funds to

complete the original project as planned. The delay in build-

ing the project has, in all probability, increased the cost

of its construction. The original reservation of funds may

well be inadequate to complete construction, Since the de-

lay is the result of the unlawful actions of the defendants,

the plaintiffs should not suffer a decrease in the number

of housing units originally planned. This Court shall order

the defendants to take all necessary steps to build the pro-

ject as originally planned by using the funds now held in

reserve by HUD and providing such additional funds as may

be necessary.

Finally, plaintiffs have asked this Court to

order the defendants to pay attorneys’ fees arising out of

this litigation, While plaintiffs may be entitled to an

award of attorneys’ fees the issue has not been briefed.

See, Alyeska Pipeline Service Co. v. Wilderness Society,

421 U.S. 240 (1975); Skehan v. Board of Trustees of

Bloomsburg State College, No. 73-1613 (3d Cir. June 21,

1976). Furthermore, plaintiffs have not submitted evidence

in connection with reasonableness of any fees claimed.

Lindy Bros. Builders, Inc. v. American Radiator & Standard

Sanitary Corp., 487 F.2d 161 (3d Cir. 1973); Pitchford v.

Pepi, Inc., 531 F.2d 92, 109 (1975).

This Memorandum and Order is in lieu of findings

of fact and conclusions of law pursuant to Rule 52(a) of

the Federal Rules of Civil Procedure.

Accordingly, the following Order is entered:

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

RESIDENT ADVISORY BOARD, et al, : CIVIL ACTION

Ve $ ‘

FRANK L,. RIZZO, et al, : NO, 71-1575

ORDER

AND NOW, this Soh say of November, 1976, it

is hereby ORDERED as follows:

(1) The defendants Philadelphia Housing Authority,

Redevelopment Authority for the City of Philadelphia, City

of Phiscdelphia, Department of Housing and Urban Development,

their officers, agents, and employees shall immediately take

all necessary steps for the construction of the Whitman Park

Townhouse Project as planned,

(2) PHA shall submit to this Court within ninety

days a plan for the racial composition of the Whitman Park

Townhouse Project,

(3) PHA shall present to this Court within ninety

days a plan concerning the tenanting of all public housing

projects within the City of Philadelphia which will further

racial integration.

(4) All parties to this litigation are enjoined

from taking any action which will interfere in any manner

with the construction of the Whitman Park Townhouse Project.

RACMOND J, BRODERICK, [J.

UNITED STATES COURT OF APPEALS

For raze Turep Cracurr

Nos. 77-1241, 77-1242,

77-1243 & 77-1245

' RESIDENT ADVISORY BOARD by ROSE WYLIE,

Trustee ad litem, 1310 Arch Street

and

HOUSING TASK FORCE OF THE PHILADELPHIA

URBAN COALITION by SHIRLEY DENNIS and

JOSEPH MILLER, Trustees ad litem, 1512 Walnut

Street, Philadelphia, Pennsylvania

and

ESTHER SIERRA MENDEZ, individually and as guard-

ian ad litem for her children, Carmelo, Mariel and

Juanita, 1811 North 17th Street, Philadelphia, Penn-

and

JEAN THOMAS, individually and as guardian ad litem

for her children, Cheryl, James, Kevin and Byris

Thomas, 3855 Mt. Vernon Street, Philadelphia, Penn-

sylvania hi

‘MABLE SMITH, individually and as guardian ad litem

for her children, Jerome, Vanessa and Janice Smith,

2429 North 27th Street, Philadelphia, Pennsylvania

and

BERNICE DEVINE, individually and on behalf of her

children Robert, Linda aud Arthur Devine, Apt. 809-C,

Warnock Place, Richard Allen Homes Philadelphia,

Pennsylvania,

on their own behalf and on behalf of all persons

on the waiting list for public housing in the City

of Philadelphia, Pennsylvania

FRANK RIZZO, individually and in his capacity as Mayor

of Philadelphia, City Hall, Philadelphia, Pennsylvania

and

HILLEL LEVINSON, individually and in his capacity as

Managing Director of the City of Philadelphia, Munici-

pal Services Building, Philadelphia, Pennsylvania

and

JAMES H. J. TATE, individually

and

FRED T. CORLETO, individually

and

MULTICON CONSTRUCTION CORP., 4645 Executive

Drive, Columbus, Ohio

and

MULTICON PROPERTIES, INC., 4545 Executive Drive.

Columbus, Ohio

and

REDEVELOPMENT AUTHORITY OF THE CITY OF

PHILADELPHIA, City Hall Annex, Philadelphia, ©

Pennsylvania,

Defendants .

and

WHITMAN AREA IMPROVEMENT COUNCIL, ALICE

MOORE, FRED DRUDING, and ALL MEMBERS

OF WHITMAN AREA IMPROVEMENT COUNCIL

AND ITS OFFICERS, AGENTS, SERVANTS,

REPRESENTATIVES and EMPLOYEES, and ALL

OTHER PERSONS ACTING IN CONCERT WITH

THEM OR OTHERWISE PARTICIPATING IN

THEIR AID,

Defendant-Intervenors

and

PHILADELPHIA HOUSING AUTHORITY, 2012 Chest-

nut Street, Philadelphia, Pennsylvania

and

REDEVELOPMENT AUTHORITY OF THE CITY OF

PHILADELPHIA, City Hall Annex, Philadelphia,

Pennsylvania

and

RUSSELL BYERS, individually and as Regional Admin-

istrator of the U.S. DEPARTMENT OF HOUSING

AND URBAN DEVELOPMENT, Curtis Building,

Philadelphia, Pennsylvania

and

CARLA A. HILLS, individually and as Secretary of the

UNITED STATES DEPARTMENT OF HOUSING

AND URBAN DEVELOPMENT, Curtis Building,

Philadelphia, Pennsylvania

and

UNITED STATES DEPARTMENT OF HOUSING AND

URBAN DEVELOPMENT, Curtis Building, Phila-

delphia, Pennsylvania,

Third Party Defendants

THE PHILADELPHIA HOUSING AUTHOR-

ITY, Appellant in 77-1241

REDEVELOPMENT AUTHORITY OF THE

CITY OF PHILADELPHIA,

Appellant in 77-1242

WHITMAN AREA IMPROVEMENT COUNCIL,

FRED DRUDING and all others acting in

concert therewith, Appellants in 77-1243

FRANK L. RIZZO, HILLEL 8. LEVINSON, the

CITY OF PHILADELPHLA, et al.,

Appellants in 77-1245

4

(D.C. Civil No. 71-1575)

AprraL From tue Unrrep Srares District Covrr ror THE

Eastern District ory Pennsy.vaNia

Argued June 6, 1977

Berors: Weis, Circuit Judge, Ciarx,* Associate Justice and

Ganru, Circuit Judge.

Hanoitp CraMEr

Manzo 8. Corna.atr

Axruur W. Lerco,

15th Floor, The Fidelity Building

Philadelphia, Pa. 19109

Attorneys for Appellant in 77-1241

Of Counsel:

Meatnov, GeLman, Jarrn

& Cramer

Perer A. Galante

Niono.as J. Scarip1

1234 Market Street East

Philadelphia, Pennsylvania 19107

Attorneys for Appellant in 77-1242

Joszsrn M. Grinpnart

CrumMuisH and GinpHart

2015 Land Title Building

Philadelphia, Pennsylvania 19110

Attorneys for Appellants in 77-1243

* The Honorable Tom C. Clark, Associate Justice, Supreme Court of

the

participated in the dociakon in tha case bet died before the opinion as writen

Jamuzs M. Penny, Jp.

Assistant City Solicitor

Jutuan Wesseii

Assistant

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