Appendix — Herriman v. Midwestern United Life Insurance
Supreme Court brief1972
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Appendix.
OPINION OF THE UNITED STATES DISTRICT
COURT FOR THE EASTERN DISTRICT
OP PENNSYLVANIA.
IN THE
UNITED STATES DISTRICT COURT
For THE EASTERN DisTRICT OF PENNSYLVANIA
Civil Action No. 71-1575
RESIDENT ADVISORY BOARD, et al.
v.
FRANK L. RIZZO, et al.
Memorandum and Order.
November 5, 1976.
BropeRrick, J.
The plaintiffs in this action have brought suit alleging
that various defendants have violated the Civil Rights 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 Constitu-
tion. The plaintiffs commenced this action in 1971 seek-
ing both injunctive relief and damages against the de-
fendants in connection with their actions or inactions in
(Al)
A2 District Court Opinion
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 Hancock on the west. (Ex-
hibit P-168). Plaintiffs contend that the failure to build
this proposed project violates their rights under the stat-
utes 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 af-
firmative program to insure that the occupancy of the
Whitman Park Townhouse Project is racially integrated;
declare null and void any and all agreements and resolu-
tions 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 Town-
house 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
‘
J
—_
District Court Opinion A3
comprehensive plan which will remedy the racially segre-
gated 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 di-
recting the defendants to reimburse plaintiffs for all costs
and attorneys’ fees arising as a direct result of this
litigation.
This litigation, which was filed in 1971, has been pro-
tracted and vigorously contested by all parties and en-
compasses a complex and prolonged 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 Philadelphia Court of Common Pleas.’ In that law-
suit WAIC attempted, unsuccessfully, to halt construction
of the Whitman Park Townhouse Project through the judi-
cial 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 discus-
sions in an effort to bring about settlement of this litiga-
tion, and although it was generally conceded that addi-
tional housing was badly needed in Philadelphia, a
settlement never materialized. The non-jury trial of this
1. WAIC, et al. v. Multicon, et al., No. 1187, July Term, 1971
C. P. Co.
A4 District Court Opinion
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 conclu-
sions of law with 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 Philadelphia who, by virtue
of their race, are unable 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.”? THe only individual named as a
plaintiff in the plaintiffs Corrected Second Amended and
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 predominantly Black neighborhood. (N. T.
43-77). Ms. Thomas moved from her home on Mount
Vernon Street because of the 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
2. The case was certified by the Court as a class action on be-
half 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).
District Court Opinion A5
family. (N. T. 43-77). Her present 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 prob-
lems, 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 cur-
rently living in public housing in the City of Philadelphia.
(N. T. 43-6, 43-8, 43-9, 43-10). Currently, there are ap-
proximately 120,000 public housing tenants in the City uf
Philadelphia. (N. T. 43-6). RAB and PHA have signed
a memorandum of understanding which enables RAB to
effectively advocate the position of all tenants of public
housing and to act as a liaison between the tenants, PHA
and HUD: (N. T. 43-8, 43-11, 43-12). All tenants of
4. Ms. Thomas never requested a transfer to any icular
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 housing was to request a transfer. PHA would
then try to find a suitable for the applicant.
5. RAB is concerned with public tenant problems in connec-
tion with admission, PHA policy changes, security and police pro-
tection, maintenance and the overall condition of public ing in
Philadelphia. (N. T. 43-11, 43-12).
A6 District Court Opinion
public housing in Philadelphia are eligible to become mem-
bers 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 and are on the waiting
list for public housing, are eligible to become members of
RAB.” (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 con-
sider asking to transfer to that project. (N. T. 43-34, 43-
35, 43-75, 43-76).
The Housing Task Force is a semiautonomous arm of
the Urban Coalition. (N. T. 44-101). The Urban Coali-
tion is described as a partnership of business, labor and
community people who have joined together for the pur-
pose of bringing the varied resources of the community
together to attack various urban ills, particularly those of
minority groups living in the inner city. (N. T. 44-100).
The membership of the Housing Task Force is chosen by
the Executive Committee of the Board of Directors of the
Urban Coalition and the Housing Task Force is empowered
to make decisions in connection with housing in Philadel-
phia 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
6. 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).
District Court Opinion A7
conditions for lower income people, and is therefore con-
cerned with 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 in-
dustrialized 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 Urbe Coali-
tion, together with RAB, submitted a proposal tv 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 mem-
bers 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 hous-
ing. (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 inter-
vene 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 Philadelphia, with the
7. Hereinafter, Multicon Properties, Inc. and Multicon Con-
struction Corporation will be referred to jointly as Multicon.
8. 35 P. S. § 1541 et seq.
Cue
ARS <™ District Court Opinion
four appointed members selecting the fifth. The members
serve for staggered five year terms. (N. T. 1-33, 1-34).
RDA is also a creature of state statute °° and all its mem-
bers are appointed by the Mayor of Philadelphia. (N. T.
1-70)."
In 1972, the new Mayor, Frank Rizzo, and the new
Managing Director, Hillel Levinson, were joined indi-
vidually as defendants and were substituted in their official
capacities for 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 Phila-
delphia City Council was joined as a defendant in the
event the Counci: 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 groups 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 hous-
ing 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). An
9. 35 P. S. § 1545(b)(1).
10. 35 P. S. § 1701 et seq.
il. 35 P. S. § 1705.
District Court Opinion AQ
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 PHA. (N. T. 1-85, 2-22). Local opposition
developed in reaction to the placing of high rise public
housing in Whitman and WAIC was formed to oppose
the Whitman project as planned. (N. T. 1-85, 2-23).
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, demolition and site clearance, site prepara-
tion, and rehabilitation or conservation required for the
proposed Whitman Urban Renewal Area. (N. T. 2-10,
2-11). The plan included clearing 130 homes, none of
which were at the Whitman public housing site, and re-
habilitating 2,500 structures. (N.T. 2-11). The Whitman
Urban Renewal Plan, dated October 23, 1963, which in-
cluded the previously established Whitman public housing
site, contained no height limitation for public housing
Al0 District Court Opinion
within the area. (N. T. 2-11, 2-12).% 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 families, 21
of which were to be displaced by the urban renewal.
(N. T. 2-13). The total amount of all governmental funds
expended through RDA in the Whitman Urban Renewal
Area from 1963 through April 30, 1975 has been
$11,178,210.43; of this amount $6,682,686.92 has consti-
tuted federal funds from HUD. (N.T.2-21). RDA, with
federal funds from HUD and from other sources. con-
demned 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 and sold for between
$25,000 and $30,000, all of which were eligible for FHA-
insured mortgages. (N. T. 2-16). There was no opposi-
tion 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 rehabil-
itate their homes. (N. T. 2-20). A total of 1,123 house-
holds have received funds from this program. Over one-
fourth of all the households in the Whitman area have
benefited from the grant and loan program initiated by
RDA. (N. T. 2-21). Further, urban renewal activities in
the area have included a wide range of activities ben-
efiting the Whitman area. (N. T. 2-20).
eee ee eT ae te ee
to herein, plan was amended to provide for low-rise public
wy h T., (N. T. 212).
District Court Opinion All
In 1964, after opposition by WAIC had developed to
the high-rise design of the proposed Whitman project, a
special Act of Congress was passed, known as the Barrett
Amendment. (N. T. 1-85, 20-11)."* Pursuant to the Bar-
rett Amendment, the design of the proposed Whitman
project was changed from high-rise to low-rise construction
and RDA purchased the Whitman site land from PHA for
$1,217,679.59 with the understanding 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 sitc 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).% In
May of 1967, City Council passed an ordinance approving
the purchase of the land fron. PHA. (N. T. 1-87). In
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 Harts-
ville 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.
13. The Barrett Amendment is Section 1007 of the Housing
and Urban Development Act of 1964. The Amendment was intro-
duced by the late South Philadelphia Congressman, William
14. The cost of the writedown by RDA was absorbed in the
urban renewal a ae oe SO Oe Oe oe Seteeet oo
sidies from HUD. (N. T. 1-86, ).
Al2 District Court Opinion
(N. T. 5-21). A turnkey developer differed from a con-
ventional 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 Authority. (N. T.
5-22). The Housing Authority, if it decided to 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 developer would build the project and upon com-
pletion turn it over to the Housing Authority for the agreed
upon purchase price. The Housing Authority would man-
age the project and HUD would provide the necessary
subsidies. (N. T. 5-22, 5-23).
A HUD Equal Opportunity staff review of the Whit-
man 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 pre-
dominantly all-White area, condusive 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 established the Whitman project as a “bal-
ance” for the Morton Addition, a project located in a Black
area of Philadelphia. (N. T. 1-88). The Morton Addi-
tion has been completed and is now occupied. (N. T. 2-4).
During the latter part of 1969, PHA and RDA ad-
vertised for turnkey developers for the Whitman site pur-
suant to all applicable regulations. Twelve developers
responded, and on April 28, 1970, PHA chose Multicon as
the developer, which choice was approved by HUD on
15. The “balance” er was part of HUD’s site selection
criteria nN to Title VI of the 1964 Civil Rights Act, 42 U.S.C.
§ 2000(d). (N. T. 1-88). HUD hy Opportunity review of the
Morton Addition recommended ualified approval of the
Morton project conditioned upon completion of the Whitman
project. (N. T. 2-4).
en eee ee eo SS
Pe ee ee ee Fe eee
PO I BED ew BE OI OCALA hh te
District Court Opinion Al3
May 20, 1968. (N. T. 2-7, 2-8)."* 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)."7 The Whitman Park Town-
house Project was unique in design for public housing be-
cause 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 to which the public housing tenant
could eventually become the owner of his own home.
(N. T. 5-46, 5-48).**
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 Town-
house 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. On
October 29, 1970, based upon appropriate HUD approval
of the project, PHA and Multicon entered into an agree-
ment of sale whereby Multicon was to construct 120 town-
houses on the Whitman site. (N. T. 2-8, 2-9, 2-10). On
16. By RDA Board resolution, a disposal price of $115,000 was
set on the land, which . oy oy 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 apart-
ment style design but was designed as a two story row house de-
velopment. (N. T. 5-28, 5-38).
18. Originally, of course, PHA would own and operate the
Whitman Park Townhouse yy The common areas which PHA
would retain control of after homes were , Parnes by public
housing tenants were kept to a minimum. (N. T. 5-48). Tenants
would take on maintenance responsibilities to build up “sweat
equity” to enable them to make a down payment and eventually
to own their homes.
Al4 District Court Opinion
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 partici-
pation unit, for the Whitman Urban Renewal Area, was
involved in numerous meetings and correspondence with
RDA, PHA and Multicon officials. (N. T. 2-22, 2-25,
2-26). On June 2, 1970, a meeting was held in the Whit-
man 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 Town-
house Project. (N. T. 5-61). WAIC made several sug-
gestions in connection with the building materials to be
used in the project and fire safety for the completed town-
houses. (N. T. 2-26, 5-65, 5-66, 5-68). The suggestions
were accepted by those officials in attendance at the meet-
ing 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 develop-
ment 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 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- at-
tended a WAIC meeting to answer community questions
about the project. At the same meeting, Fred Druding
District Court Opinion Al5
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 com-
mence 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, block-
ing the operations of the contractor and refusing to leave
the area when requested to do so. (N. T. 2-33, 2-34).
On 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,
on March 25, 1971, demonstrators refused to permit a bull-
dozer 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 Pleas 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, 197], en-
joining further interference with the construction cf the
project. (N. T. 2-35, 3-9, 19-7). On April 6, 1971, a
meeting was held in the chambers of the Honorable Ned
Hirsch, the Judge assigned to the Multicon case, to deter-
mine whether the preliminary injunction issued to Multi-
con should continue in effect. (N. T. 3-16, 3-17). The
preliminary injunction was continued in 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). On several occasions
Multicon asked the Philadelphia police for aid in enforc-
ing their injunction against interference with construction
Al6 District Court Opinion
but were told that it was up to the Sheriff's office to en-
force injunctions and that the Philadelphia police were not
going to interfere by making arrests unless specifically
requested by the Sheriff to do so. (N. T. 19-13, 19-16,
19-17). On April 26, 1971, Multicon obtained a writ of
assistance from Judge Hirsch. (N. T. 3-36). On April
30, 1971, Multicon agreed, after a conference in Judge
Hirsch’s chambers, to the issuance of an order prohibiting
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 Director
Corleto stated that Multicon would not receive police
assistance. (N. T. 3-40).
Shortly thereafter, there were a series of meetings
between WAIC, PHA and Multicon. (N. T. 2-78, 3-41,
3-42, 10-39). Various changes in the Whitman Park
Townhouse Project were proposed to WAIC in order to
settle the controversy, including opening a building in
the project as a community recreation area, reserving 50%
of the units for persons who were displaced by the clear-
ance 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 include
Whitman residents, to assure 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 settlement offer
of PHA. (N. T. 2-89, 3-45, 3-46). On May 18, 1971,
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 Multicon that the court’s order of April 30, 1971 be
lifted and that Mu!ticon be permitted to return to work on
hea
ee
District Court Opinion Al7
the Whitman Park Townhouse Project. (N. T. 3-55, 3-56,
19-21, 19-24, 19-25). At the May 20th meeting, Manag-
ing Director Corleto stated that the City would not pro-
vide police assistance for Multicon should it return to work.
(N. T. 3-57, 19-26 to 19-28). Mr. Gordon Cavanaugh,
Chairman of PHA, stated to those present at the meeting
that he had been instructed by Mayor Tate to order Multi-
con 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 assistance from HUD in building the
Whitman Park Townhouse Project. (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 build-
ing Whitman. (N. T. 3-69, 10-73). However, 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 Com-
mon Pleas of Philadelphia County issued a permanent in-
junction 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 wv. Multicon, No. 1187
(July Term, 1971, C. P. Phila.), seeking to halt further
construction at the Whitman site. Trial of this lawsuit
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 won co-
operated in the construction of the Whitman Park Townhouse
Project. No action was ever taken in connection with the sugges-
tion. (N. T. 10-76 to 10-77, 10-79 to 10-80).
Al8 District Court Opinion
commenced on August 4, 1971 and continued through
September 6, 1971. (N. T. 9-92 to 9-93).
In the early part of April, 1971, when Multicon en-
countered difficulties with continuing the construction at
the Whitman site, Lieutenant Fencl of the Civil Disobedi-
ence 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). Multi-
con contacted the Philadelphia Department of Licenses
and Inspections to determine what permits were required
to construct a fence and was informed that no license or
permit was required. (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
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 police-
man 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). On September 1, 1971,
20. Written permission was given by the Department of Streets
on April 29, 1971. (Exhibit P96-10).
. District Court Opinion Al9
Multicon received a violation notice from the Department
of Streets in connection 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 sub-
:
: contractor at his home in Delaware County. (N. T. 9-96).
: On September 2, 1971, Mr. Marrara of the Street Depart-
: ment 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 been
issued to Multicon to build a fence, although he had not
seen the permit. (N. T. 48-67, 48-82). He also told Mul-
ticon 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.** (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 construc-
tion 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 Whit-
man site since April of 1971 and was located on the streets
so that the equipment would not interfere with the con-
struction of the houses on the other areas of the site. (N. T.
Oe he ee ek ee Se eee eee
-™
rT eee
21. The Whitman site had, at this point, been vacant for about
ten years.
A20 District Court Opinion
19-67, 19-68). The second notice required Multicon to
construct concrete sidewalks adjacent to all streets around
and through the Whitman site. (N. T. 19-69). Many of
these sidewalks, particularly on Howard and Hancock
Streets, were in bad repair when Multicon began construc-
tion 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
sidewalks had occurred when PHA had cleared the Whit-
man site. (N. T. 22-52 to 22-53). Further, the City had
agreed with Multicon prior to commencement of con-
struction that the City would repair the sidewalks adjoin-
ing 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).”
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 ad-
mitted that the City generally did not enforce the fence
regulations in connection with high rise construction, al-
though 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 So-
22. Mr. Marrara never received a complaint in connection with
the trailer and construction ry ment which were on Hancock and
Howard Streets. (N. T. 48-1 y
District Court Opinion A21
licitor, John McNally, the Department of Streets agreed
that Multicon could erect its fence around the site ~re-
cisely in the location from which the Department oS
Streets had previously removed it. (N. T. 22-69, 22-70).
Multicon submitted a written request for a permit to con-
struct this agreed upon fence on September 3, 1971. (Ex-
hibit P96-10). Mr. Marrara gave written approval for
the fence on September 9, 1971, stating that “At no time
will any permanent barricade or fence be allowed on any
. . . legally open street.” Exhibit P96-11, (N. T. 48-57).
The permit was also conditioned upon Multicon main-
taining the footways in the area. (Exhibit P96-11).
On September 10, 1971, Multicon attempted to re-
sume its construction of the fence but was ordered by the
Department of Streets to stop until all the sidewalks were
blacktopped. (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 con-
struction 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 elec-
tion, it was crystal clear, that I would preserve the neigh-
borhoods 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
A22 District Court Opinion
Park Townhouse Project. (N. T. 44-77). On that same
day, he placed a 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 hous-
ing proposed for an area did not influence his decision to
support the local community 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 community
support. (N. T. 42-83). While stating that “there is a
possibility that it might affect the minorities, that they
might be shortchanged . . .”, 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 Town-
house Project, and that no further public hearings were
necessary. (N. T. 9-99, 14-18). After Mayor Rizzo was
23. The request for legal \— was made to Mr. Greenlee
by Walter D'Alessio, Executive Director of RDA, because of state-
ments made in Federal Court by Levy Anderson, uire, City
Solicitor for Philadelphia, that all proper procedures had not been
followed in connection with the Whitman Park Townhouse Project.
(N. T. 14-21).
District Court Opinion A23
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 pro-
gram in the City of Philadelphia. (N. T. 14-23 to 14-25).
Mr. Greenlee testified that the Mavor’s support was neces-
sary 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 neigh-
borhoods because people in White neighborhoods did not
want Black people moving in with them. (N. T. 1447).
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 obtain 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 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
A24 District Court Opinion
Rizzo try to obtain a compromise in connection with the
Whitman project but Mayor Rizzo stated that a com-
promise 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).** 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 municipality could cancel a public
housing project if in the case of Philadelphia, City Council
had a public hearing in connection with the proposed can-
cellation and passed a resolution revoking the original au-
thorization 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 Carroll, who had been assigned by Mayor Rizzo to
the problems surrounding the Whitman Park Townhouse
Project. (N. T. 12-15, 24-3). Mr. Carroll, during these
r Rizzo felt that most of the people who would move
into A "Whines Park Townhouse Project would be Black and
that Whitman was a White neighbor (N. T. 14-57).
25. P. L. 176, 83d Cong., 67 Stat. 298, 306.
26. Mr. Carroll testified that, although he had daily personal
meetings with Mayor Rizzo, the Mayor never phen his polic;
District Court Opinion AQ5
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 connection with the
building of the Whitman 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).”
Therefore, Multicon told HUD that they would return to
Philadelphia and commence construction of the project.
(N. T. 4-63).
On April 28, 1972, RDA passed the following resolu-
tion, numbered 7973:
RESOLUTION AUTHORIZING ACTION RE: DEFAULT.
Be It Reso.vep, By the Redevelopment Author-
ity of the City of Philadelphia that General Counsel
26. (Cont'd. )
in connection with the Whitman Park Townhouse Project to him,
and all he knew about the Mayor's policy in connection with the
Whitman or. was what he read in the newspapers. (N. T. 24-4,
24-13, 24-14).
27. Counsel for Multicon met in Washington, D. C. with David
Maxwell, general counsel for HUD. Multicon sought help from
HUD in either getting construction of the project completed or
bringing the project 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 Phila-
delphia under the workable program. However, HUD stated that
it would not follow that course of action for political reasons.
(N. T. 35-43, 35-45).
A26 District Court Opinion
is authorized to take such action as may be necessary
in connection with any default between Multicon
Properties, Inc., provided, however, there is a repre-
sentation from the Philadelphia Housing Authority of
the default in its Contract for development of housing
in the Whitman 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 Philadelphia Housing Authority in regard to
the parcel 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 obliga-
tions within 18 months.
Multicon has not only failed to meet its obliga-
tion, but has given the Authority no indication of
when, if ever, it intends to 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.
29. Mr. Greenlee testified that the resolution was passed in an
effort to get Multicon to proceed with the project in spite of its
problems therewith. (N. T. 14-68, 14-69, 14-70).
District Court Opinion A27
Carroll to Chief Deputy Solicitor, Sheldon Albert, Esquire.
(N. T. 12-17). 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 Con-
struction 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 injunc-
tion, 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 community
and the City” and stated that:
The defendants, further, have no legal right to
construct. Its contracts and agreements with the Re-
development Authority of the City of Philadelphia
and the Philadelphia Housing Authority have ter-
minated with defendants’ failure to complete con-
struction 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 com-
munity consultation as required by law. (N. T. 12-21,
12-22). (Emphasis supplied ).
Also, on the morning of June 22, 1973, at about 10:00
a.m., the attorney for RDA in the then pending litigation,
captioned WAIC v. Multicon, petitioned Judge Dwyer to
withdraw from the jointly proposed Findings of Fact,
A28 District Court Opinion
Conclusions of Law and Brief which had been filed on
behalf of PHA, RDA and Multicon. The 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 participa-
tion in connection with the Whitman project had been
met, a position consistently maintained by RDA through-
out 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 Philadelphia that the contract entered
into by and between Multicon Properties, Inc., and
the Redevelopment Authority of the City of Phila-
delphia is hereby declared to be void as 1n1T10 due
to the lack of community participation in the decision-
making process as required under the various de-
cisions of the U. S. Supreme Court, or, in the alterna-
tive, said contract presently in existence between the
Redevelopment Authority and Multicon Properties,
Inc., is declared to be in default, which contract be-
came effective on July 14, 1970.
Be it further resolved that counsel duly desig-
nated by the Redevelopment Authority be authorized
to pursue all legal remedies available to the Authority
in order to enforce the rights of the Redevelopment
Authority in accordance with the terms of the afore-
said contract. (N. T. 12-23, 4-67). (Emphasis
supplied ).
30. The Multicon contract is the only contract which RDA has
ever declared to be void ab initio, and, — Tequested by the
plaintiffs, RDA has not supplied the names of the “various decisions
12-94) U. S. Supreme Court” referred to in the resolution. (N. T.
District Court Opinion A29
Deputy Mayor Carroll stated that the passage by RDA of
the June 22, 1972 resolution was not a surprise to him be-
cause 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 problem with the Resolution as drafted
and submitted to RDA. (N. T. 24-97, 24-103, 24-107).
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 RDA Board, re-
ceived a letter from William B. Patterson, HUD area
director, who stated the position of HUD in connection
with the June 22, 1972 RDA resolution. Mr. Patterson
stated that “Such action is highly improper and an action
that cannot receive our concurrence,” and set 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 Development.
As I mentioned to you on the telephone this
morning, I am sending you additional information re-
A30
District Court Opinion
garding two of the most pressing problems involving
two housing proposals which HUD is attempting to
foster on unwilling communities.
It would appear that HUD is a prime example of
carrying out a successful operation even though the
patient may die as a result.
The two programs in question are:
1. Whitman Park—a Turnkey III Public Housing
Project.
Morrell Park—an apartment proposal under Sec-
tion 236.
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 proposed housing, which would
downgrade the neighborhoods.
The Whitman controversy appeared to be finally
settled when the Philadelphia Redevelopment Au-
thority canceled the contract with the builder, Multi-
con 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 letter 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.
The City Administration has a recognized re-
sponsibility to the people of Philadelphia and can not
shield itself behind any bureaucratic regulations, as
in the case of certain HUD officials who apparently
District Court Opinion A3l
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, many 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. (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 Re-
development 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 Redevelop-
ment Authority and Multicon Properties, Inc. (re-
developer), which contract became effective on July
14, 1970.
Be it further resolved that counsel duly desig-
nated by the Redevelopment Authority be authorized
to pursue all legal remedies available to the Authority
A32 District Court Opinion
in order to enforce the rights of the Redevelopment
Authority in accordance with the terms of the afore-
said 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 235,
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 connection with its July 25 letter as to whether it
should cure its alleged default. (N. T. 4-86). Settlement
negotiations continued between Multicon and the City in
connection with Muliticon’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 con-
struction equipment and prevent the workmen from oper-
ating the equipment. Demonstrators also prevented trucks
District Court Opinion A33
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, }4-21)." A
few demonstrators expressed their opposition to the Whit-
man Park Townhouse Project on the basis that it would
bring Blacks 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, 34-184, 34-188, 42-18,
42-22). The residents and members of WAIC who op-
posed the Whitman Park Townhouse Project publicly
stated their opposition thereto on the basis that public
housing projects 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). Mo: eover, 95% of the
31. Statements made by Whitman residents and WAIC mem-
bers often referred to residents of public housing as “they” or
32. Defendant's te are stated, “So I think a reasonable conclu-
sion would be that Philadelphia is obviously segregated along with
all 200 other cities studied.” (N. T. 50-78). The evidence pre-
sented at trial shows that other major cities in the East and North-
east are also racially segregated. (N. T. 50-68, 50-71, Exhibit D-1l,
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 Northeastern city indexed by defendant's e
wth the exception of Newark, New Jersey. (Exhibit D-1, D-2,
A34 District Court Opinion
people on the waiting list for public housing in Philadel-
phia 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 per-
centage of the population of the City of Philadelphia has
been Black. (N. T. 31-42, 31-43).% During the early
1900's, however, the Black population of Philadelphia was
widely distributed throughout the City. (N. T. 31-43, 31-
44, 31-49, Exhibit P-142A). With the advent of World
War I and a greatly increased migration of Blacks to the
industrialized cities, the Black population became concen-
trated 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 (the area
just north of Center City), West Philadelphia, north of
Market Street, and South Central Philadelphia (imme-
diately south of Center City toward the Schuylkill River),
(N. T. 31-56, Exhibits P-143, P-144).* At the same time,
the Black population in Philadelphia decreased in the
Northeast, the Northwest, the Southwest and the South-
east section of the City. The area comprising the Whitman
project observed a decline of about 300 in its Black pop-
ulation 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). In the period
1950-1960, following World War II, there was a large
migration of Black people from the South to the North-
33. At the end of the 19th century, the Black ulation 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).
34. In 1940, the Black ulation in the City of Philadelphia
was 252,757, and comprised 13.1% of the total population in Phila.
delphia. (N. T. 31-63).
District Court Opinion A35
eastern United States. (N. T. 31-65). In 1970, 34.4% of
the population in the City of Philadelphia was non-White.
(N. T. 31-68, 50-90).
As the Black population in Philadelphia has increased
from 1940 until the present, the West Philadelphia Black
population area has grown to include an area south of
Market Street and the North Philadelphia Black popula-
tion 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, Exhibits P-152, P-154).*"
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
35. In 1960, the non-White population of Philadelphia com-
prised 26.7% of the total population. (N. T. 50-89). This increase
in percentage of the City's total population between 1960 and 1970
represented an increase of 135, lacks.
36. Defendant's expert testified that the Black ulation has
shown some mobility in the recent past. However, conceded
that such mobility did not result in a racial mixture but simply a
reconcentration of Black population in more racially impacted areas
of the Ci oe robably the result of the large
— Black population. (N. T. 51-67, 51-74). Further,
yap ree ed that there were only three census tracts in
the City of Philadelphia which could be characterized as having a
stable interracial population composition. (N. T. 51-79).
37. These areas increased, according to the defendant's expert,
because the total Black population increased, while the total popu-
lation of Philadelphia remained stable. (N. T. 51-59). This
led to an increase in the total number of census tracts containing
Black population of over 10%. (N. T. 51-60).
A36 District Court Opinion
in which they were located. (N. T. 31-76, 31-79).** Asa
result of 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 over-
whelmingly by White tenants. (N. T. 31-92, 31-94, Ex-
hibit 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 96% 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 op-
erated by PHA could be characterized 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 housing
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
38. See Favors v. Randall, 40 F. Supp. 743 (E. D. Pa. 1941) in
which the court upheld this policy of racial segregation.
39. There was one exception, Spring Garden Apartments,
which was under 90% Black, but still populated qvarubdindngly by
Black tenants. (N. T. 31-96).
District Court Opinion A37
activity slowed somewhat with seven additional projects
being built adding only 270 units. Five of these projects
were located in overwhelmingly Black neighborhoods,
and two were iocated 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 neigborhoods. (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).
PHA public housing projects continue to reflect the
racial composition of the neighborhood in which they 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
40. This number does not reflect additions to existing projects,
which HUD considers as separate projects. (N. T. 31-108),
41. The scattered site housing program includes both houses
which PHA purchases and renovates and leases to public housin
tenants, and which PHA leases from a private owner an
then offers as public housing. (N. T. 31-119).
42. Prior to 1969, City Council had restricted its authorization
for the acquisition of scattered site housing by PHA to West Phila-
delphia, north of Market Street, an area of concenirated Black
population. (N. T. 31-118).
A38 District Court Opinion
Black. Most of the public housing projects and the scat-
tered site units are located in Black residential areas of the
City 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, Ex-
hibit P-194). The percentage of non-White public hous-
ing occupancy has increased steadily from 1963 until the
present. (Exhibit P-194).** Further, one-half of the
White families living 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). In addition, 77% of Black house-
holds in Philadelphia had incomes below the median in-
come for the standard metropolitan area, while only 52%
of the White families were below the median. (N. T.
31-136). Further, the areas of the City of Philadelphia
which have the highest concentration of lowest income
families are precisely those areas which have the highest
concentration of Black population, i.e., the three previously
identified Black areas of Philadelphia. (N. T. 31-131).
This points to the obvious conclusion that there is a co-
existence between race and low income in Philadelphia.*
Also, these areas of high concentration of Black population
43. In 1972, 84% of the public housing units in Philadelphia
were occupied by non-White tenants. (Exhibit P-194).
44. The poverty level is defined as those families whose income
averages less than $500.00 per person per year. (N. T. 31-130).
45. Defendant’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 conclusion that Blacks live in the poorest sections of Phila-
delphia and represent a higher percentage of the lowest income
levels in Philadelphia. Indeed, defendant's expert testified that the
median low income level of Blacks in Philadelphia has prevented
their movement, in terms of housing, to predominantly White areas
of the City. (N. T. 51-75, 51-76).
District Court Opinion A39
have the lowest percentage of owner occupied housing in
Philadelphia. (N. T. 31-133, Exhibits P-156, P-157). The
three areas which have been identified as the predom-
inantly Black areas of Philadelphia 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 Phila-
delphia occurred in the three Black residential areas of
Philadelphia. (N. T. 31-135, Exhibit P-163). These
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 disproportionate number of people with incomes
below the poverty leve! these statistics lead to the con-
clusion that the Black population in Philadelphia occupies
the poorest housing because it cannot afford to live
elsewhere.
As noted earlier, the area comprising the Whitman
project observed a decline of about 300 in its Black popu-
lation between 1930 and 1940 and in 1970 there were only
100 Black residents in the area. (N. T. 31-57, 31-70, Ex-
hibits 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 in-
— rere
Sie, De es a ae
A40 District Court Opinion
tegrated 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 area
adjacent 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).*7 The area adjacent to the west
of the Whitman Park Townhouse Project site, i.e., Third
and Phillip Streets, which contained many Black families,
was cleared by RDA in the course of its activities in con-
nection 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 Town-
house Project, were proposed for construction in pre-
dominantly 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 Rox-
borough 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
46. The number of Black households in blocks adjacent to the
Whitman site doubled from 15 to 30. (Exhibit P-195).
47. The only area in which there are any Black households in
the Whitman area is the far northeast corner of the Whitman area.
(N. T. 31-148, Exhibit P-170).
District Court Opinion AA]
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 sec-
tion 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 re-
quired and public opposition arose which resulted in the
developer changing his plans and proposing 110 units of
higher density, unsubsidized housing, which the com-
munity supported. (N. T. 6-53, 6-55, 6-58, 6-59).
Standing.
The defendants contend that the record in this case
does not support a finding that any plaintiffs, either in-
dividual 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 be-
half of “all low income minority persons residing in the
City of Philadelphia who, by virtue of their race are unable
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 re-
quisite standing to maintain the action. Simon v. Eastern
Kentucky 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, un-
identified members of the class to which they belong and
which they purport to represent.” Warth v. Seldin, 422
U. S. 490, 502 (1975).** The question of standing is in
48. See Simon v. Eastern Kentucky Welfare Rights Organiza-
tion, 44 U. S. L. W. 4724, 4728 n. 20 (June 1, 1975).
A42 District Court Opinion
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 wv. Seldin, 422 U. S. 490, 498 (1975). “[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 Welfare Rights Organization,” 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 favor-
able 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 organization
may have standing in its own right to seek judicial relief
from injury to itself and to vindicate whatever rights and
immunities 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’ associational ties.
NAACP vw. 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 them in prior 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 jurisdiction, and, second, whether, as a prudential
matter, plaintiff-appellees are proper proponents of the
srry rights on which they base this suit. 44 U. S.
. W. at .
District Court Opinion A43
Second, even in the absence of injury to itself, an organiza-
tion may have standing solely as a representative of its
members, so long as the organization alleges “that its mem-
bers, or any one of them, are suffering immediate or threat-
ened 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 re-
quirement 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 large class of citizens, that
harm alone normally does not warrant exercise of
jurisdiction. . . . Second, even when the plaintiff has
alleged injury sufficient to meet the “case or contro-
versy” requirement, this Court has held that the plain-
tiff generally must assert his own legal rights and
interests, and cannot rest his claim to relief on the
legal rights or interests of third parties. Warth v.
Seldin, 422 U. S. at 499.°° (Citations omitted).
50. In Singleton v. Wulff, 44 U. S. L. W. 5213 (July 1, mgm
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. e Supreme Court stated that if the relationship
of the litigant to the person whose right he seeks to assert is “in-
extricably bound 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 un-
affected by the outcome of the suit.” Second, the Court may in-
uire into the ability of the third party to assert his own right. “If
is some genuine obstacle to such assertion,” the third party
who is in court becomes “the right’s best available F ny mens
SS & Se Sa ns ng ge dice es is case we
ve no third party involvement, these ex ons are not ap-
plicable to this case.
Ee
A44 District Court Opinion
With these principles in mind, we will look to the facts
of this case and analyze the standing of the plaintiffs in-
volved. 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 suffi-
ciently established that she will be immediately and per-
sonally injured if the Whitman project is not built.”
Further, Ms. Thomas does not allege a generalized griev-
ance 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 incrimina-
tion. Therefore, her testimony remains unchanged, at-
tacked 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, al-
though she testified in her representative capacity as the
head of RAB, in the cross-examination of Ms. Reynolds it
51. Ms. Thomas did not testify that she was scheduled to move
to the Whitman — However, the tenants had not 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 need to Whitman does not destroy her standing.
District Court Opinion A45
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 cur-
rent housing, that she would like to live in an integrated
area of Philadelphia and that the Whitman Park Town-
house Project would have provided her with such an op-
portunity. Ms. Reynolds testified that, at present, no 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 plain-
tiff 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 that low income minority residents of the City of
Philadelphia are unable, because of their race, to secure
decent housing outside areas of minority racial concentra-
tion and that the failure to build Whitman has deprived
them of the opportunity to escape from these conditions.
Clearly, if RAB’s claims are legally cognizable, its mem-
bers have been injured by the failure to build the Whitman
project. Those RAB members who live in racially im-
pacted areas of the City of Philadelphia 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 com-
plaint in this case seeks only declaratory and injunctive
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A46 District Court Opinion
relief which is prospective in nature and any remedy
granted can reasonably be expected to inure to the benefit
' 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 cur-
rently 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 per-
sons residing in the City of Philadelphia who, by virtue of
their race are unable to secure decent, safe, and sanitary
housing, outside of areas of minority concentration, and
who would be eligible to reside in the Whitman Park
Project.” In their briefs attacking the plaintiffs’ stand-
ing in this case, the defendants, although not specif-
ically 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
on Rule 23(a) of the Federal Rules of Civil Procedure pro-
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)
there are questions of law or fact common to the class, (3) the
claims or Aefenses of the representative parties are typical of
District Court Opinion A47
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 Whit-
man project and therefore were not harmed by the failure
to build Whitman. We find no merit to this contention in
view of the fact that there was no procedure for anycne
to apply for admission since the Whitman project was
never constructed. We find that this action is appropriate
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 defend-
ants 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 af-
firmatively 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 af-
firmative duties imposed by the 1968 Civil Rights Act in
connection with the Whitman Park Townhouse Project.
52. (Cont'd. )
the claims or defenses of the class, and (4) the representative
— will fairly and adequately protect the interests of the
A48 District Court Opinion
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 establish that the governmental and private
actions taken to cancel the Whitman Park Townhouse
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 govern-
mental 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 Whit-
man 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 seg. 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 Phila-
delphia 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 liability, ie., that
the governmental defendants were obligated to act affirma-
District Court Opinion A49
tively to promote integration in all federally funded hous-
ing, we note that Congress has long been concerned with
the complex and severe problems created by segregated
housing in the United States and has accordingly 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 ground
of race, color, or national origin, be excluded from
participation in, be denied the benefits of, or be sub-
jected to discrimination under any program or activity
receiving Federal financial assistance.
Congress extended the prohibition on race discrimination
to private housing and added provisions applicable to gov-
ernmental 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, includ-
ing both governmentally and privately operated units, 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 —
A50 District Court Opinion
(a) To refuse to sell or rent 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,
a dwelling to any person because of race, color, re-
ligion, sex, or national origin. (b) To discriminate
against any person in the terms, conditions, or privi-
leges of sale or rental of a dwelling, or in the provi-
sion of services or facilities in connection therewith,
because of race, color, religion, sex, or national origin.
Along with outlawing private housing discrimination
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 desegregation. In fact, if it were not for
all the printed guidelines the housing agencies have
issued 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 pro-
portion of public housing . . . in the United States directly
built, financed and supervised by the Federal Government
—is racially segregated.” 114 Cong. Record 2528. Sen-
ator Brooke also stated:
What adds to the murk is officialdom’s apparent be-
lief 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 tri-
umph—even as he ok’s public housing sites in the
District Court Opinion A51
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 sim-
ilar 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 gentlemen why,
despite the 1962 fair housing Order, most public hous-
ing is still segregated, he invariably blames it on re-
gional custom, local traditions, personal prejudices of
municipal housing officials. 114 Cong. Record 2281
Senator Brooks concluded by saying:
In other words, our Government, unfortunately, has
been sanctioning discrimination in housing through-
out this Nation. Id.
Senator Mondale also addressed the actions of gov-
ernment in promoting or continuing racial segregation in
housing:
Negroes who live in slum ghettos, however, have been
unable to move to suburban communities and other
exclusively 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
policies and practices of agencies of government at all
levels. 114 Cong. Record 2277. (Quoting the Mil-
waukee Journal).
The preceding passages make it clear that Congress was
well aware of governmental action contrary to previous
A52 District Court Opinion
legislative prohibitions of racial discrimination in housing.
Congress was aware of the refusal of certain communities
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 problem. That section provides that:
(d) The Secretary of Housing and Urban de-
velopment shall—
(5) administer the programs and activities
relating to housing and urban development in a
manner affirmatively to further the policies 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
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 under § 3608
(d)(5) by our Third Circuit'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 govern-
mental agencies promote fair housing as follows:
Read together, the Housing Act of 1949 and the Civil
Rights Acts of 1964 and 1968 show a progression in
the thinking of Congress as to what factors signifi-
cantly contributed to urban blight and what steps
must be taken to reverse the trend or to prevent the
recurrence of such blight. In 1949 the Secretary, in
examining whether a plan presented by a LPA in-
District Court Opinion A53
cluded a workable program for community improve-
ment, could not act unconstitutionally, but possibly
could act neutrally on the issue of racial segregation.
By 1964 he was directed, when considering whether a
program of community development was workable, to
look at the effects of local planning action and to pre-
vent discrimination in 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 com-
munity improvement in 1949, by 1964 such a program
had to be nondiscriminatory in its effects, and by 196&
the Secretary had to affirmatively promote fair hous-
ing. 436 F. 2d at 816.
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 con-
tract 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
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 consid-
eration of relevant factors it must be set aside.” 436 F. 2d
at 819. 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.
53. The Court in Shannon held that the decision of HUD was
reviewable under 42 U. S. C. § 3608(d)(5) to determine whether
oo duties required under the Act had been met. 436
F. 2d at
Ad4 District Court Opinion
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 the 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 administer-
ing 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 hous-
ing 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 Court in
Otero pointed out that under Title VIII:
54. In Otero, a low-income housing project was constructed on
a site which, according to the regulations of the New York City
Housing Authority, required giving former site residents a priority
on admission. If the priority were followed, the project would be
80% non-White and 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 population in the sur-
rounding neighborhoods. The Second Circuit concluded that the
affirmative acticn obligation of § 3608(d)(5) precluded adherence
to the priority regulation due to the segregating effect:
Sacks 6 cute of Cae gov ee es ne Se
to prevent ated housing ees and the ills which at-
tend them. To allow housing officials to make decisions having
the long range effect of increasing or maintaining racially
pony housing patterns merely because minority groups
gain an immediate benefit would render such persons un-
willing, and perhaps unwitting, partners in the trend toward
ghettoization of our urban centers. 484 F. 2d at 1134.
District Court Opinion A55
An authority may not, for instance, select sites for
projects which will be occupied by non-Whites only
in areas already heavily concentrated with a high pro-
portion of non-Whites... .
An authority is barred from using assignment methods
which seek to exclude, or have the evident effect of
excluding, persons of minority 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 ).
The Second Circuit, in Otero, citing Shannon, then stated:
[W]e are satisfied that the affirmative duty placed on
the Secretary of HUD by § 3608(d)(5) and through
him on other agencies administering federally-assisted
housing programs also requires that consideration
be given to the impact of proposed public housing
programs on the racial concentration in the area in
which the proposed housing is to be built. Action
must be taken to fulfill, as much as possible, the goal
of open, integrated residential housing patterns and
to prevent the increase of segregation, in ghettos, of
racial groups whose lack of opportunities the Act was
designed to combat... .
The affirmative duty to consider the impact of pub-
licly assisted housing progra as on racial concentration
and to act affirmatively to promote the policy of fair,
integrated housing is not to be put aside whenever
racial minorities are willing to accept segregated
housing. The purpose of racial integration is to bene-
fit the community as a whole, not just certain of its
members. 484 F. 2d at 1133-1134.
A56 District Court Opinion
In Banks v. Perk, 341 F. Supp. 1175 (N. D. Ohio
1972) affd 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 Author-
ity. Cleveland was found by the Court to be a racially
segregated city. Prior to the date on which the new City
administration took office, it announced that it would op-
pose public 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 in-
come 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 Court found that the City’s revocations had a
racially discriminatory effect and violated 42 U. S. C.
§ 2000d and 42 U. S. C. §3608(d)(5). As to the City
administration’s policy in connection with its support for
local communities, the Court stated:
The aforementioned public pronouncements to
oppose public housing in any areas where the resi-
dents are opposed to it and the City’s continued
affirmations of that proposition are contrary to the
national housing policy. It is the duty of city admin-
istrations 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 housing authority may try, their aims
and goals cannot be met without the support and
leadership of the administration within the city it at-
tempts to build public housing. Since this nation is
committed to a policy of balanced and dispersed pub-
lic housing, low-income Blacks can no more be con-
District Court Opinion A57
fined to a concentrated area than that they can be
required to send their children to segregated schools.
341 F. Supp. at 1179.
The Court in Banks also applied the affirmative obli-
gation requirement of 42 U. S. C. § 3608(d)(5) to the
Cleveland Housing Authority and found that it had not
met its obligation 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 concen-
tration, could not stand in light of the affirmative obliga-
tions 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 au-
thorities in conjunction with Federal agencies respon-
sible for housing programs are to affirmatively insti-
tute action the direct result of which was to be the
implementation of the dual and mutual goals of fair
housing and the elimination of discrimination in that
housing. 341 F. Supp. at 1182."
Other courts have also found violations of the affirmative
duties placed upon HUD and local agencies under 42
55. Many of the cases cited herein found violations of both the
Fourteenth endment’s Equal Protection Clause, 42 U. S. C.
| Soos(d}(3). as well as 42 U. S. C. § 2000d and 42 U. S. C.
3608(d)(5). These cases were decided r to Washington v.
a = = S — 6 §: Ce 040 (1876), which held that racially
tory intent or purpose was r to esta a consti
tutional 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).
hn oe we Ae ek oT
A58 District Court Opinion
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 (5th 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
analyze the liability of each individual governmental de-
fendant, it is appropriate to note several significant factors
which form the background against which the actions of
the governmental defendants involved herein must be
viewed. First, it is beyond question that the City of Phila-
delphia is racially segregated, and was so in 1971 and
1972. It is also clear that the low-income public housing
system operated by PHA is also racially segregated 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 cur-
rently 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 system. (N. T. 38-55). The public housing
system operated by PHA is predominantly Black. As of
56. Defendants’ expert testified that 82% of the scattered site
Philadephia, ie. areas with « minority concentration of over 40k
N -l
hia, i.e., areas with a minority concentration of over 40%.
\ 5 - 36). Of the 8,235 total scattered site units operated b
6,747 are located in racially impacted areas. (Exhibit D-32).
District Court Opinion A59
1974, 90.8% of the persons residing in conventional housing
projects (those units which were not scattered site) were
non-White.” 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 pre-
dominantly White areas of Philadelphia have a pre-
dominantly White tenant population. (N. T. 53-39,
Exhibit D-26). 96.8% of the scattered site units in Phila-
delphia 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 on and around the Whitman
site, coupled with the cancellation of the Whitman Park
Townhouse Project, has reinforced segregation in Phila-
delphia. Because of the clearance, which led to the dis-
placement of Blacks from a fairly integrated pocket in the
Whitman area, Whitman has become more segregated 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 com- -
posed 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 con-
centrated in the three major Black areas of Philadelphia,
57. Of the total 47,313 residing in conventional public
asp. projects as of 1 4, 42,950 were non-White. /( bit
ee a ee eee ee eee Cd”
ave «co a ie
~~, “e.. ae n vet Peele
ye) a
A60 District Court Opinion
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 fur-
therance of the national policy enunciated in Title VIII
of the Civil Rights Act of 1968, Public housing offers the
only opportunity 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 segre-
gated housing in Philadelphia.
1) City of Philadelphia
We find that, in view of the pattern of racial segrega-
tion 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 imple-
menting the national policy of fair housing and has violated
Title VIII of the Civil Rights Act of 1968. Initially, we
find that the policy of the current administration to sup-
port 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 integregation in housing. Banks v. Perk, 341
F. Supp. 1175, 1179 (N. D,. Ohio 1972), aff'd in part, 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, govern-
mental officials are not free to ignore the law and override
a national policy of fair housing as enunciated in Title
District Court Opinion A61
VIII of the Civil Rights Act of 1968, Further, the spec*'
pledge of support by Mayor Rizzo to WAIC in their fight
to stop the Whitman Park Townhouse Project encouraged
that community 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 my mind. But
thinking it over, I would say there is a possibility that
that might affect the minorities, that they might be
shortchanged, but it would not change my 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, 2d 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 Phila-
delphia. (N. T. 25-49). Such unawareness or insensitiv-
ity to racial problems on the part of a public official does
not comply with the affirmative duties imposed by Title
VII,
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 hous-
ing program. Further, as the facts here graphically il-
lustrate, the City was capable of preventing the construc-
tion of a public housing project which had been approved
and was under construction.
A62 District Court Opinion
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, Op-
position 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 ob-
tain an injunction, its encouragement of a June 22, 1972
RDA resolution declaring the Multicon contract void ab
initio, its action to keep HUD out of the Whitman contro-
versy, and by eventually paying damages to Multicon
rather than insisting that Multicon fulfill its contract. In
view of the heretofore described racial segregation in hous-
ing 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 o. Thompson,
403 U. 8. 217 (1971); Cooper v. Aaron, 358 U. S. 1 (1958);
Gautreaux v. Chicago Housing Authority, 296 F. Supp.
907 (N. D. Ill. 1969) aff'd, 436 F. 2d 306 (7th Cir. 1970),
cert. denied, 402 U. S, 922 (1971).
District Court Opinion A63
2) Redevelopment Authority of the City of Philadel-
phia
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, and
that therefore, they should not be held responsible for any
actions taken in this “public housing” case. We find, how-
ever, that RDA was intimately involved in the construc-
tion of the Whitman Park Townhouse Project and in the
entire Whitman Urban Redevelopment Area. RDA be-
came 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 af-
firmative duty to achieve integration under 42 UV. §S. C.
§ 3608(d)(5) as did the City of Philadelphia. However,
RDA did nothing to encourage the building of the Whit-
man Park Townhouse Project. Rather, RDA succumbed
to the pressure to hinder construction and void the con-
tracts 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. There-
after, on June 22, 1972, it took two unusual actions in
connection with the Whitman Park Townhouse
First, in the lawsuit brought by WAIC, it withdrew its re-
quested 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 steadfastly main-
tained throughout the trial. Second, it passed an unusual
resolution declaring that its contract with Multicon was
void ab initio for lack of citizen participation. These
A64 District Court Opinion
actions were taken without any effort to have Multicon
honor its construction contract and have the project con-
structed. Furthermore, RDA must 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 segre-
gation in the area surrounding the Whitman Park Town-
house Project. This course of conduct, viewed in its con-
text of a racially segregated city, does not comply with the
affirmative duties required of RDA and is in violation of
42 U.S. C. § 3608(d) (5).
3) Philadelphia Housing Authority.
It is clear that PHA has an affirmative duty to inte-
grate its housing projects and be instrumental in dispersing
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. 8, 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 conjunc-
tion with 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 of fair housing and the elimina-
tion of discrimination of that housing. 341 F. Supp.
at 1182.
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 integra-
District Court Opinion A65
tion, 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, the 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 April 29, 1972, Multicon would be in
default. This impending default was never communicated
to Multicon. PHA has maintained throughout this litiga-
tion that it is ready to proceed with the Whitman Park
Townhouse Project, which would be an affirmative step
toward desegregation of its housing system. It has not
done so. It has not proposed a plan, nor has it taken any
action aimed at desegregating its racially segregated public
housing system.” We find that PHA has not met its
affirmative obligation under 42 U, S. C. § 3608(d) (5).
4) Department of Housing and Urban Development
We likewise find that HUD is liable under Title VIII
of the Fair Housing Act, 42 U. S, C. § 3608(d)(5). The
their duty to devise —o area
it fo the soligation ofthe City to capport A, to encourage
them in way, and to aid in the integration of the
A66 District Court Opinion
evidence is clear that HUD was aware that the other de-
fendants were not in compliance with the Fair Housing
Act of 1968 in their opposition to the Whitman Park Town-
house Project (N, T. 44-48, 45-20, 45-21, Exhibit P-113)
and that there was racial motivation involved in the op-
position to the project. (N. T. 44-48 to 44-52, Exhibit
P-90). HUD was asked by Multicon on several occasions
to intervene on behalf of Multicon to aid in constructing
the project, but provided no assistance. (N. T. 35-43, 35-
44, 4-44). Moreover, under HUD’s own equal oppor-
tunity determination, Morton Addition, a project located
in a Black racially impacted area of Philadelphia, was to
be built only if construction proceeded with the Whitman
Park Townhouse Project, which HUD determined met
the equal opportunity guidelines. Morton Addition was
built while Whitman, a project which would have fur-
thered integration in Philadelphia, was not built. In short,
HUD heeded the suggestion from Washington to keep a
“low profile” in the dispute after the Rizzo Administration
wrote its letter criticizing HUD to a member of President
Nixon's White House staff. (N. T. 12-30 to 12-33, 45-21,
45-22). Keeping a “low profile” is not in keeping with the
affirmative duty specifically placed upon HUD by the Fair
Housing Act of 1968. Shannon v. HUD, 436 F. 2d 809
(3d Cir. 1970), HUD failed to use the resources of the
federal government in an effort to have the Whitman Park
Townhouse Project constructed. We find that HUD has
not met its affirmative obligation under 42 U. S. C.
§ 3608(d) (5).
b) Racial Effect.
Plaintiffs contend that proof that the action of the
governmental defendants had a racially discriminatory
effect, makes out a prima facie case of a violation of Title
VIII of the Civil Rights Act of 1968 and thereby shifts the
District Court Opinion A67
burden to the defendants to show a compelling govern-
mental interest justifying their action. Prior to, and during
the trial of this case, plaintiffs also contended that proof
of governmental actions having a racially discriminatory
effect would likewise establish a cause of action under the
Fifth, Thirteenth and Fourteenth Amendments as well as
42 U. S. C. §§ 1981 and 1983. However, in Washington
v. Davis, — U. S. —, 96 S. Ct. 2040 (1976), the Supreme
Court held that a disproportionate racial effect was not
sufficient by itself to establish a constitutional violation
under the Equal Protection Clause in an employment dis-
crimination case. The Supreme Court distinguished Title
VII liability and the standard of proof thereunder, from
the standard of proof required to establish a constitutional
violation, under which the plaintiffs were required to show
a discriminatory purpose on the part of the defendants.
Plaintiffs have conceded that the holding of Washington
requires them to abandon their contention that dispropor-
tionate racial effect is sufficient to establish a prima facie
case in connection with the constitutional violations they
allege. See Washington v. Davis, — U. S. —, 96 S. Ct.
2040, 2050 (1976). We agree with the plaintiffs, however,
that the prima facie case concept applicable to cases
brought pursuant to Title VII of the Civil Rights Act of
1964 is for the reasons hereinafter discussed, applicable
to violations of Title VIII of the 1968 Act.”
60. in Washington undermines the racial effect stand-
ard for cases enunciated in v. Duke Power Co.,
401 U. S. 424 (1971). See — U. S. —, 96 S. Ct. 2040, 2047, n. 10
(1976). In Justice Burger stated:
A68 District Court Opinion
The Fair Housing Act proscribes a wide range of dis-
criminatory housing practices by both public and private
parties. These acts range from a party's outright refusal
to rent or sell on the basis of race to discrimination in
terms and conditions of housing which will “otherwise
make unavailable or deny” a dwelling on racial grounds.
See 42 U. S. C. §§ 3604(a), 3604(b), 3605, 3606. The
Supreme Court has noted that “[t]he language of the Act
is broad and inclusive” and requires a “generous construc-
tion.” Trafficante v. Metropolitan Life Ins. Co., 409 U. S.
205, 209, 212 (1972). Lower Courts have also agreed that
the Act is to be liberally construed in accordance with the
national policy in favor of fair housing. United States v.
Hughes Memorial Home, 396 F. Supp. 544, 548 (W. D.
Va. 1975); Zuck v. Hussey, 394 F. Supp. 1028, 1047 (E. D.
Mich. 1975); United States v. Real Estate Development
Corp., 347 F. Supp. 776, 781 (N. D. Miss. 1972). More-
over, it is well established that “civil rights statutes should
be read expansively in order to fulfill their purpose.”
Mayor v. Ridley, 465 F. 2d 630, 635 (D. C. Cir. 1972)
(Wright, J., concurring ) citing Griffin v. Breckenridge, 403
U. S. 88, 97 (1971). We have heretofore discussed the
legislative history of the Act which shows that in enacting
the Fair Housing Act, Congress was aware that its past
attempts to end racial discrimination in housing had failed
and that affirmative action was required. Furthermore,
the legislative history of the Fair Housing Act demon-
strates that Congress was aware of the proof problems
inherent in establishing racial intent. During debate on
the Act, Senator Baker introduced an amendment which
would have exempted from liability any homeowner who
engaged a real estate agent “without indicating any prefer-
ence, limitation or discrimination based on race . . . or an
intention to make any such preference... .” 114 Cong.
District Court Opinion A69
Recérd 5214. Senator Percy opposed the amendment
stating that:
If I understand this amendment, it would require
proof that a single homeowner had specified racial
preference. I maintain that proof would be impos-
sible to produce. 114 Cong. Record 5216.
The amendment was rejected by the Senate.
Prior to the Supreme Court’s recent decision in Wash-
ington, it was well established that the racial effect test
was applicable to Title VIII of the Civil Rights Act of
1968. In United States v. City of Black Jack, 508 F. 2d
1179 (8th Cir. 1974), cert. denied, 422 U. S. 1042 (1975),
the Eighth Circuit held that Title VIII was designed to
remove artificial barriers in housing and that proof of racial
intent was not required under the Act. 508 F. 2d at 1184.
The court then stated that:
The burden of proof in Title VIII cases is
governed by the concept of the “prima facie case.”
To establish a prima facie case of racial discrimination
the plaintiff need prove no more than that the conduct
of the defendant actually or predictably results in
racial discrimination; in other words, that it has a dis-
criminatory effect. The plaintiff need make no show-
ing whatsoever that the action resulting in racial dis-
crimination in housing was racially motivated. Effect,
and not motivation, is the touchstone... . .
Once the plaintiff has established a prima facie
case by demonstrating racially discriminatory effect,
the burden shifts to the governmental defendants to
demonstrate that its conduct was necessary to pro-
mote a compelling governmental interest. 508 F. 2d
at 1184-1185. (Footnotes and citations omitted ).
A70 District Court Opinion
Earlier the same court, in Williams v. Mathews Co.,
499 F. 2d 819 (8th Cir.) cert. denied, 419 U. S. 1021
(1974) stated in connection with Title VIII that:
The courts will look beyond the form of a transaction
to its substance and proscribe practices which actually
or predictably result in racial discrimination, irrespec-
tive of defendant’s motivation. 499 F. 2d at 826.
Other courts have held that the prima facie case concept
applies to Title VIII and that effect and not motivation
governs such cases. United States v. Pelzer Realty Co.,
Inc., 484 F. 2d 438, 443 (5th Cir. 1973), cert. denied, 416
U. S. 936 (1974); United Farmworkers of Florida Housing
Project, Inc. v. City of Delray Beach, 493 F. 2d 799, 808
(5th Cir. 1974); Barrick Realty, Inc. v. City of Gary, 491
F. 2d 161 (7th Cir. 1974); United States v. Real Estate
Development Corp., 347 F. Supp. 776, 782 (N. D. Miss.
1972); Zuck v. Hussey, 394 F. Supp. 1028, 1047 (E. D.
Mich. 1975); United States v. Hughes Memorial Homes,
396 F. Supp. 544, 548 (W. D. Va. 1975). Likewise, in
Shannon ov. HUD, 436 F. 2d 809 (1970), our Third Circuit
stated that Title VIII required that HUD “look at the
effects of local planning action . . . to prevent discrimina-
tion in housing resulting fromm such action.” 436 F. 2d at
816. These cases, read in light of the legislative history of
Title VIII and its remedial purpose convince this Court
that the racial effect test and the prima facie case concept
continue applicable to actions brought pursuant to Title
VIII of the Civil Rights Act of 1968.
An analysis of the facts relevant to this theory of lia-
bility in connection with the governmental defendants
need not detain us long. As stated herein, there is no
question that the actions of these defendants in terminating
the Whitman Park Townhouse Project had a racially dis-
criminatory effect. Our analysis in connection with this
District Court Opinion A71
finding is found at page A59 of this opinion and need not
be repeated here. As pointed out herein, it is clear from
this record that the actions of the City of Philadelphia,
RDA and PHA in terminating the Whitman Park Town-
house Project, taken against the background of racial segre-
gation in Philadelphia and in the PHA system, had a dis-
parate racial effect. Wright v. Council of City of Emporia,
407 U. S. 451 (1972).
Having established that the actions of the City, RDA
and PHA in terminating the Whitman Park Townhouse
Project had a racially discriminatory effect, the burden
shifted to the defendants to establish a compelling govern-
mental interest which would justify such action. The only
justification advanced by any party for the action taken
by the defendants was that of the City. The City argued
that its actions in terminating the project were required
because of threatened violence. The United States Su-
preme Court has consistently held that threats of violence
or unrest by some citizens cannot justify depriving those
of minority background of their constitutional rights.
Cooper v. Aaron, 358 U. S. 1 (1958). “Citizens may not
be compelled to forego their constitutional rights because
officials fear public hostility ....” Palmer v. Thompson,
403 U. S. 217, 226 (1971) (dictum). See Wright v.
Georgia, 373 U. S. 284, 293 (1963); Buchanan v. Warley,
245 U. S. 60 (1916). Moreover, we note the excellent
record that the Civil Disobedience Unit of the Police De-
partment of the City of Philadelphia has established in
connection with potential disruptions of the peace. In-
deed, in this case Inspector Fencl, the able head of the
Civil Disobedience Unit, testified that the Philadelphia
Police Department could control any disturbance in con-
nection with the Whitman Park Townhouse Project and
could have seen that construction was completed. (N. T.
49-146, 49-147).
A72 District Court Opinion
We find that the plaintiffs have established that the
actions of the City of Philadelphia, RDA and PHA had a
racially discriminatory effect which was not justified by
any compelling governmental interest, and constitute a
violation of Title VIII of the Civil Rights Act of 1968.
c) Racial Intent.
It is, of course, beyond question that the denial of
housing with a racial purpose or motivation is illegal. If
such racially motivated actions are taken by an official
of a governmental body, those actions violate the Thir-
teenth and Fourteenth Amendments as weil as 42 U. S. C.
§§ 1981 and 1982. Further, a governmental agency which
denies housing on the basis of race violates 42 U. S. C.
§ 2000(d) et seq., and 42 U. S. C. § 3601 et seq. Private
action denying housing on the basis of race violates 42
U. S. C. §§ 1981 and 1982. Runyon v. McCrary, 44
U. S. L. W. 5034 (June 25, 1976); Jones v. Alfred H.
Mayer Co., 392 U. S. 409 (1968); Gatreaux v. Chicago
Housing Authority, 296 F. Supp. 907 (N. D. Ill. 1969),
aff d 436 F. 2d 306 (7th Cir. 1970), cert. denied, 402 U. S.
922 (1971). Although it is not enough to establish racial
discriminatory purpose to show solely that actions taken
had a racially discriminatory impact, “disproportionate
[racial] impact is [not] irrelevant” to prove an invidous
discriminatory purpose which “may often be inferred from
the totality of the relevant facts.” Washington v. Davis,
— U.S.— , 96S. Ct. 2040, 2048, 2049 (1976). Mr. Jus-
tice Stevens, concurring in Washington states succinctly
the role that proof of the ultimate consequences of actions
plays in determining racial motivation:
Frequently the most probative evidence of intent
will be objective evidence of what actually happened
rather than evidence describing the subjective state of
District Court Opinion A73
mind of the actor. For normally the actor is pre-
sumed to have intended the natural consequences of
his deeds. This is particularly true in the case of
governmental action which is frequently the product
of compromise, of collective decisionmaking, and of
mixed motivation. It is unrealistic, on the one hand,
to require the victim of alleged discrimination to un-
cover the actual subjective intent of the decision-
maker or, conversely, to invalidate otherwise legiti-
mate action simply because an improper motive
affected the deliberation of a participant in the deci-
sional process. — U. S. — , 96 S. Ct. at 2054.
With these principles in mind we will proceed to analyze
the proof of racial motivation of WAIC and the City of
Philadelphia.
1) Whitman Area Improvement Council.
We find that the evidence does not support a finding
that the opposition to the Whitman Townhouse Project
by WAIC was substantially racial.“ We make this finding,
although we are well aware that many of the comments
made by the demonstrators and picketers at the Whitman
site and at WAIC meetings displayed racial bias toward
the potential residents of the Whitman Park Townhouse
Project. (N. T. 33-106, 33-118, 34-4, 34-6, 17-73, 49-126,
49-130, 21-10). At trial, some witnesses from the Whit-
man Area who were members of WAIC testified that they
were opposed to the Whitman project because it would
move Blacks into the neighborhood and would lead to
mixed marriages. (N. T. 54-91, 54-92, 28-13, 28-14, 28-
15, 28-85). Furthermore, we find that some of the rea-
sons given by WAIC for its opposition to the Whitman
Park Townhouse Project lack substance. Banks v. Perk,
61. All residents within the boundaries of the Whitman Urban
Renewal Area are members of WAIC.
A74 District Court Opinion
341 F. Supp. 1175, 1178-79 (N. D. Ohio 1972) aff'd in
part, rev'd in part on other grounds, 473 F. 2d 910 (6th
Cir. 1973). Early in the planning stages for the Whitman
Park Townhouse Project, WAIC opposed the project be-
cause of its design. However, a special Amendment of
Congress was passed to accommodate a change in design
from high-rise to low-rise construction. After these
changes were made, PHA and Multicon made other de-'
sign changes, including back alleys, a change in windows
for fire safety and creation of a recreation area, which met
the objections of WAIC. WAIC also opposed the project
because they felt that all housing projects were inherently
unsafe and unsanitary. However, they presented no evi-
dence to justify such a finding. Indeed, the Whitman
Park Townhouse Project was sufficiently unique in its low-
rise design and home-ownership features to destroy any
generalization about all housing projects. Also, PHA
agreed to allow a screening committee, which would in-
clude WAIC members, to screen the prospect've occupants
of the Whitman Townhouse Project. WAIC also opposed
the project because persons with low incomes, making no
down payments, would be able to live in homes allegedly
more expensive than theirs, i.e., that those who were to
live in the Whitman Park Townhouse Project were “get-
ting something for nothing.” This record reveals that the
Whitman community received and accepted over $11 mil-
lion in urban renewal funds and over $2.7 million in re-
habilitation loans and grants over a ten-year period.
(N. T, 2-21, 57-22). It is difficult to accept WAIC’s pur-
ported opposition to low-income minority citizens receiv-
ing benefits, while they themselves were a leader in the
nation in terms of funds given to an urban renewal area.
(N. T. 20-17). Moreover, it is well established as a mat-
ter of law that in the area of economic and social welfare,
a governmental body need not treat all groups identically
District Court Opinion ATS
so long as its distinctions are rationally based. Dandridge
v. Williams, 397 U. S$. 471 (1970). Finally, WAIC op-
posed the Whitman Park Townhouse Project because it
claimed insufficient citizen participation by it in the de-
cision to build. However, the evidence clearly establishes
that WAIC participated in all stages of the Whitman Park
Townhouse Project.
2) The City of Philadelphia.
It is clear from the testimony that certain officials of
the City were aware of the existence of some racially
motivated opposition to the Whitman Park Townhouse
Project. The evidence is uncontradicted that Mayor
Rizzo, both before and after taking office in January of
1972, considered public housing to be Black housing and
took a stand against placing such housing in White neigh-
borhoods. Further, the City must be charged with knowl-
edge of the fact that, as pointed out herein, the cancellation
of the Whitman Park Townhouse Project had an obvious
disparate effect on the Black community and that the
natural consequences of the action taken by the City would
be to produce that disparate impact. Washington ov.
Davis, — U. S. —, 96 S. Ct. 2040, 2054 (1976) (Stevens, J.,
concurring). Acting with such intent constitutes violation
of the Thirteenth and Fourteenth Amendments and the
Civil Rights statutes enumerated herein.
The Remedy.
The evidence in this case establishes that certain de-
fendants have committed both constitutional and statutory
violations in connection with the stoppage of construction
of the Whitman Park Townhouse Project. As the facts
outlined herein establish, this action was taken against a
background of racial segregation both in the City of Phila-
ta]
A76 District Court Opinion
delphia and in the housing system of PHA. The Whitman
Park Townhouse Project would have been a step by the
governmental defendants toward the desegregation of both
the City of Philadelphia and the PHA system and would
have been in conformance with the governmental defend-
ants’ statutory obligation under Title VIII to take affirma-
tive action to achieve fair housing. Further, as set out
herein, halting the Whitman Park Townhouse Project led
to further segregation in the Whitman Area while per-
petrating racial segregation in Philadelphia and the PHA
system.
Federal District Courts have broad equitable powers
to remedy constitutional violations. Hills v. Gautreaux,
— U.S, —, 96 S. Ct. 1538 (1976). We see no reason why
these same equitable powers should not apply to violations
of the affirmative duties imposed by the Civil Rights Act
of 1968, 42 U. S. C. § 3601, et seq., which was passed in
part in an effort to enforce the Thirteenth and Fourteenth
Amendments as well as the Commerce Clause of the U. S.
Constitution, United States v. City of Black Jack, 508 F. 2d
1179 (8th Cir. 1974), cert. denied, 422 U. S. 1042 (1975);
114 Cong. Record 2273. As stated by the United States
Supreme Court in an oft-quoted citation:
Once a right and violation have been shown, the scope
of a district court's equitable powers to remedy past
wrongs is broad, for breadth and flexibility are in-
herent in equitable remedies. Swann v. Charlotte-
Mecklenburg Board of Education, 402 U. §S. 1, 15
(1971).
Indeed, when faced with a civil rights violation, a United
States Disirict Court has not merely the power but the
duty “to remedy the effects of past violations as well as
bar similar violations in the future.” Louisiana v. United
District Court Opinion AT77
States, 380 U. S. 145, 154 (1965). Of course, equitable
powers may be exercised only on the basis of a found viola-
tion. Rizzo v. Goode, — U. 8. —, 96 S. Ct. 598 (1976);
but once a violation is found all reasonable methods are
available to formulate an effective remedy to achieve the
greatest possible degree of relief given the practicalities
of the situation. Hills v. Gautreaux, — U. 8. —, 96 S. Ct.
1538, 1546 (1976). Injunctive relief must be framed to
remedy the wrong claimed by the party and narrowly
tailored to remedy the specific harm shown. Hartford-
Empire Co. v. United States, 323 U. S. 386, 410 (1945);
Davis v. Romney, 490 F. 2d 1360, 1370 (3d Cir. 1974),
In trying to formulate appropriate guidelines to guide
United States District Courts in connection with the tailor-
ing of equitable relief, the United States Supreme Court
has stated that:
[Wlords are poor instruments to convey the sense of
basic fairness inherent in equity. Substance, not
semantics, must govern. . . . Swann v. Charlotte-
Mecklenbure Board of Education, 402 U. §. 1, 31
(1971).
In housing discrimination cases the federal courts have
consistently shown their willingness to exercise their broad
equitable, powers to remedy constitutional and statutory
violations. See, e.g., Dailey v. City of Lawton, 425 F. 2d
1037 (10th Cir. 1970) (order requiring the issuance of
building permits ); Banks v. Perk, 341 F. Supp. 1175 (N. D.
Ohio 1972), aff'd in part, rev'd in part on other grounds,
473 F. 2d 910 (6th Cir. 1973) (enjoining the City from
planning or building any future public housing in Black
neighborhoods ); Hills v. Gautreaux, — U. 8. —, 96 S. Ct.
1538 (1976) (ordering defendants to submit a compre-
hensive plan to remedy the segregated public housing
District Court Opinion
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tion of the Whitman Park Townhouse Project.
The. building of the Whitman Park Townhouse
Project will, at a minimum, lead to the re-establishment of
the racial balance which existed in the Whitman area prior
District Court Opinion A8l
Project was fairly well integrated, but because of the
clearance, the area became more segregated. In light of
the present racial composition of public housing in Phila-
delphia and the waiting list for public housing, building
the project as proposed can be expected to re-establish the
racial balance in the area of the Whitman project.
The proposed Whitman Park Townhouse Project has
many characteristics which make it unique and are de-
signed to avoid the problems which have accompanied
the traditional housing project. First, the proposed project
is of a low-rise townhouse design with a low density for a
public housing project. Such design will fit comfortably
in the context of the surrounding area, which is predom-
inantly row houses of similar design. Also, the project is
designed so that the occupants can eventually obtain
ownership of their homes. This unique feature is designed
to encourage proper maintenance and care of the units
which have been problems in the traditional high-rise
project.
There was testimony concerning the potential racial
composition of the Whitman Park Townhouse Project. All
parties stated their concern that the Whitman Park Town-
house Project should not have an all-Black population
which would create an island of Black people surrounded
by a sea of White people. It is for this reason that all the
parties in this litigation have suggested that the project
should be integrated. Indeed, the experts testifying for’
both plaintiffs and defendants agreed that the occupancy
of the Whitman Park Townhouse Project should not be
overwhelmingly Black. (N. T. 41-98, 41-99, 52-128,
52-129, 53-82).
We find that the present policies of PHA which it
characterizes as a “freedom of choice” plan have not only
failed to accomplish integration but have perpetuated
A82 District Court Opinion
racial segregation. The Court will therefore order PHA
to submit a proposal concerning the racial composition
for the Whitman Park Townhouse Project when con-
structed, together with a plan which will further integra-
tion in all public housing projects within the City of
Philadelphia.
The plaintiffs have asked this Court to order the gov-
ernmental defendants to provide all necessary funds to
complete the original project as planned. The delay in
building the project has, in all probability, increased the
cost of its construction. The original reservation of funds
may well be inadequate to complete construction. Since
the delay is the result of the unlawful actions of the de-
fendants, the plaintiffs should not suffer a decrease in the
number of housing units originally planned. This Court
shall order the defendants to take all necessary steps to
build the project as originally planned by using the funds
now held in reserve by HUD and providing such addi-
tional funds as may be necessary.
Finally, plaintiffs have asked this Court to order the
defendants to pay attorneys’ fees arising out of this liti-
gation. While plaintiffs may be entitled to an award of
attorneys’ fees the issue has not been briefed. See,
Alyeska Pipeline Service Co. v. Wilderness Society, 421
U. S. 240 (1975); Skehan v. Board of Trustees of Blooms-
burg State College, No. 73-1613 (3d Cir. June 21, 1976).
Furthermore, plaintiffs have not submitted evidence in
connection with reasonableness of any fees claimed.
Lindy Bros. Builders, Inc. v. American Radiator & Stand-
ard Sanitary Corp., 487 F. 2d 161 (3d Cir. 1973); Pitch-
ford v. Pepi, Inc., 531 F. 2d 92, 109 (1975).
This Memorandum and Order is in lieu of findings of
fact and conclusions of law pursuant to Rule 52(a) of the
Federal Rules of Civil Procedure.
Accordingly, the following Order is entered:
District Court Order A83
ORDER OF THE UNITED STATES DISTRICT
COURT FOR THE EASTERN DISTRICT
OF PENNSYLVANIA.
IN THE
UNITED STATES DISTRICT COURT
For THE EasTeRN District OF PENNSYLVANIA
Civil Action No. 71-1575
RESIDENT ADVISORY BOARD, et al.
v.
FRANK L. RIZZO, et al.
Order.
Anp Now, this 5th day of November, 1976, it is hereby
OrpERED as follows:
(1) The defendants Philadelphia Housing Authority,
Redevelopment Authority for the City of Philadelphia,
City of Philadelphia, Department of Housing and Urban
Development, their officers, agents, and employees shall
immediately take all necessary steps for the construction
of the Whitman Park Townhouse Project as planned.
(2) PHA shall submit to this Court within ninety
days a plan for the racial composition of the Whitman
Park Townhouse Project.
(3) PHA shall present to this Court within ninety
days a plan concerning the tenanting of all public housing
projects within the City of Philadelphia which will further
racial integration.
(4) All parties to this litigation are enjoined from
taking any action which will interfere in any manner with
the construction of the Whitman Park Townhouse Project.
/s/ R. J. Bropericx
Raymond J. Broderick, J.
District Court Order Denying Motions
A84 for New Trial
ORDER OF THE UNITED STATES DISTRICT
COURT FOR THE EASTERN DISTRICT OF
PENNSYLVANIA DENYING MOTIONS FOR
A NEW TRIAL.
IN THE
UNITED STATES DISTRICT COURT
For THE EASTERN DisTRICT OF PENNSYLVANIA
Civil Action No. 71-1575
RESIDENT ADVISORY BOARD et al.
v.
FRANK L. RIZZO et al.
Order.
Anp Now, to wit, this 10th day of December, 1976, -
the Court, having entered findings of fact and conclusions
of law on November 5, 1976, certain post-trial motions
having been filed, the Court, having reviewed the record,
findings of fact and conclusions of law, rules as follows
with respect to said motions:
It is hereby OnpERED that:
1. The motion of the City of Philadelphia to amend
findings of fact and the Court’s judgment is DEentep.
2. The motion of the City of Philadelphia for a new
trial is DENIED.
3. The motion to amend and supplement findings of
fact and conclusions of law filed by defendant, Redevelop-
ment Authority of the City of Philadelphia, is GranTEp to
the extent that the finding of fact found at pages 33-4 of
the Memorandum and Order that “Multicon received no
District Court Order Denying Motions
for New Trial A85
response from RDA in connection with its July 25 letter
as to whether it should cure its alleged default. (N. T.
4-86 ).” is amended to read, “Multicon received no instruc-
tions from RDA as to whether RDA then desired Multicon
to proceed to cure any default, but its July 25 letter
was responded to by Mr. Katz of RDA on July 28, 1972,
and Mr. Katz expressed a willingness to meet with Multi-
con in order to explore the possibility of an amicable settle-
ment. (N. T. 8-5, 8-6).” The balance of the motion is
DENIED
4. The motion for a new trial filed by defendant,
Philadelphia Housing Authority, is DeNtep.
5. The motion to amend findings of fact, conclusions
of law and judgment filed by defendant-intervenor, Whit-
man Area Improvement Council, is DENrEp.
6. The motions of the City of Philadelphia, the Re-
development Authority of the City of Philadelphia, and the
Philadelphia Housing Authority to stay execution of this
Court’s judgment pending decision on these post-trial
motions afe Dentep because they are moot.
/s/ R. J. Broperick
Raymond J. Broderick, J.
12/13/76
A86 Court of Appeals Opinion
OPINION OF THE UNITED STATES COURT
OF APPEALS FOR THE THIRD CIRCUIT.
UNITED STATES COURT OF APPEALS
For THE THIRD CIRCUIT
Nos. 77-1241, 77-1242,
77-1243 & 77-1245
RESIDENT ADVISORY BOARD by ROSE WYLIE,
Trustee ad litem, 1310 Arch Street
and
HOUSING TASK FORCE OF THE PHILADELPHIA
URBAN COALITION by SHIRLEY DENNIS and
JOSEPH MILLER, Trustees ad litem, 1512 Walnut
Street, Philadelphia, Pennsylvania
and
ESTHER SIERRA MENDEZ, individually and as guard-
ian ad litem for her children, Carmelo, Mariel and
Juanita, 1811 North 17th Street, Philadelphia, Penn-
sylvania
and
JEAN THOMAS, individually and as guardian ad litem
for her children, Cheryl, James, Kevin and Byris
Thomas, 3855 Mt. Vernon Street, Philadelphia, Penn-
sylvania
and
Court of Appeals Opinion A87
MABLE SMITH, individually and as guardian ad litem
for her children, Jerome, Vanessa and Janice Smith,
2429 North 27th Street, Philadelphia, Pennsylvania
and
BERNICE DEVINE, individually and on behalf of her
children Robert, Linda and Arthur Devine, Apt.
809-C, Warnock Place, Richard Allen Homes Phila-
delphia, Pennsylvania,
on their own behalf and on behalf of all persons
on the waiting list for public housing in the City
of Philadelphia, Pennsylvania
vo.
FRANK RIZZO, individually and in his capacity as Mayor
of Philadelphia, City Hall, Philadelphia, Pennsylvania
and
HILLEL LEVINSON, individually and in his capacity as
Managing Director of the City of Philadelphia, Mu-
nicipal Services Building, Philadelphia, Pennsylvania
and
JAMES H. J. TATE, individually
and
FRED T. CORLETO, individually
and
MULTICON CONSTRUCTION CORP., 4645 Executive
Drive, Columbus, Ohio
and
A88 Court of Appeals Opinion
MULTICON PROPERTIES, INC., 4545 Executive Drive,
Columbus, Ohio
and
REDEVELOPMENT AUTHORITY OF THE CITY OF
PHILADELPHIA, City Hall Annex, Philadelphia,
Pennsylvania,
Defendants
and
WHITMAN AREA IMPROVEMENT COUNCIL, ALICE
MOORE, FRED DRUDING, and ALL MEMBERS
OF WHITMAN AREA IMPROVEMENT COUNCIL
AND ITS OFFICERS, AGENTS, SERVANTS,
REPRESENTATIVES and EMPLOYEES, and ALL
OTHER PERSONS ACTING IN CONCERT WITH
THEM OR OTHERWISE PARTICIPATING IN
THEIR AID,
Defendant-Intervenors
and
PHILADELPHIA HOUSING AUTHORITY, 2012 Chest-
nut Street, Philadelphia, Pennsylvania
and
REDEVELOPMENT AUTHORITY OF THE CITY OF
PHILADELPHIA, City Hall Annex, Philadelphia,
Pennsylvania
and
RUSSELL BYERS, individually and as Regional Admin-
istrator of the U.S. DEPARTMENT OF HOUSING
AND URBAN DEVELOPMENT, Curtis Building,
Philadelphia, Pennsylvania
and
Court of Appeals Opinion A89
CARLA A. HILLS, individually and as Secretary of the
UNITED STATES DEPARTMENT OF HOUSING
AND URBAN DEVELOPMENT, Curtis Building,
Philadelphia, Pennsylvania
and
UNITED STATES DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT, Curtis Building, Phila-
delphia, Pennsylvania,
Third Party Defendants
‘
THE PHILADELPHIA HOUSING AUTHOR-
ITY, Appellant in 77-1241
REDEVELOPMENT AUTHORITY OF THE
CITY OF PHILADELPHIA,
Appellant in 77-1242
WHITMAN AREA IMPROVEMENT COUN-
CIL, FRED DRUDING and all others acting
in concert therewith, Appellants in 77-1243
FRANK L. RIZZO, HILLEL S. LEVINSON, the
CITY OF PHILADELPHIA, et al.,
Appellants in 77-1245
(D.C. Civil No. 71-1575)
AppeaL From THe Unrrep States District Court For THE
EasTern District OF PENNSYLVANIA
A90 Court of Appeals Opinion
Argued June 6, 1977
Berone; Weis, Circuit Judge, Cianx,* Associate Justice
and Gartn, Circuit Judge.
Artuur W, Lerco,
15th Floor, The Fidelity Building
Philadelphia, Pa. 19109
Attorneys for Appellant in 77-1241
Of Counsel:
Mestnov, GELMAN, JAFFE
& CRAMER
Peter A. GALANTE
NicHo.as J. SCAFipi
1234 Market Street East
Philadelphia, Pennsylvania 19107
Attorneys for Appellant in 77-1242
Joseru M. GrinpHART
CruMuisn and GinpHART
2015 Land Title Building
Philadelphia, Pennsylvania 19110
Attorneys for Appellants in 77-1243
Court of Appeals Opinion A9l
James M. Penny, Jn.
Assistant City Solicitor
JULIAN WESSELL
Assistant City Solicitor
SHELDON L. ALBERT
City Solicitor
1580 Municipal Services Building
Philadelphia, Pennsylvania 19107
Attorneys for Appellants in 77-1245
JONATHAN M. STEIN
Haron R. Berx
Grorce D. GouLp
ComMMUNITY LEGAL SERVICES
Sylvania House
Juniper and Locust Streets
Philadelphia, Pennsylvania 19107
CuHaaces W. Bowser
1845 Walnut Street, Suite 1300
Philadelphia, Pennsylvania 19103
Attorneys for Appellees
Resident Advisory Board et al.,
Drew S. Days, III
Assistant Attorney General
Brian K. LANDSBERG
Cyntrmia L. Atrwoop, Attorneys
Department of Justice
Washington, D. C. 20530
Attorneys for United States as Amicus Curiae
Davip BELMONT
GweEnpo.yn N. Bricnt
1317 Filbert Street
Philadelphia, Pennsylvania 19107
Attorneys for Amicus Curiae, the Housing
Association of Delaware Valley
A92
Court of Appeals Opinion
Mencer D. Tate
Joun Ratiurr
260 S. 15th Street
Philadelphia, Pennsylvania 19102
Attorneys for Amicus Curiae Fellowship
Commission
Martin E. SLOANE
Artuur D, WoLr
1425 H. Street, N. W., Suite 410
Washington, D. C. 20005
Attorneys for Amicus Curiae National
Committee Against Discri
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