# Appendix — D'Angelo v. Petroleos Mexicanos

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0114%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1978
- **Citation:** 434 U.S. 1035

## Text

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

-2-

«”

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).

-13-

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0114%3A2. Public record. Not legal advice.