Petition — City Council v. Resident Advisory Board
Supreme Court brief1979
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Supreme Court, U,
FILED
MAY 8 1979
78-1688
SUPREME COURT OF THE UNITED “S44 Peg. cum
October Term, 1978
No. 78-
City COUNCIL OF THE CITY OF PHILADELPHIA,
FRANK L. R1zzo, MAYOR
HILLEL LEVINSON, MANAGING DIRECTOR
AND THE CITY OF PHILADELPHIA, Petitioners
v.
RESIDENT ADVISORY BOARD OF PHILADELPHIA, et. al.,
Respondents
| Additional Respondents listed inside cover]
PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Mark Jurikson
Deputy City Solicitor
Sheldon L. Albert
City Solicitor
Counsel for Petitioners
20i City Hall
Philadelphia, Pa. 19107
(215) MU 6-6205
THE LEGAL INTELLIGENCER, 66 NORTH JUNIPER STREET, PHILA. PA. 19107 (215) $61-4050
ADDITIONAL RESPONDENTS
HOUSING TASK FORCE OF
THE URBAN COALITION,
BERNICE DEVINE,
MABLE SMITH,
UNITED STATES DEPARTMENT OF
HOUSING AND URBAN DEVELOPMENT,
RUSSELL BYERS, CARLA A. HILLS
ADDITIONAL PARTIES BELOW
REDEVELOPMENT AUTHORITY OF THE
CITY OF PHILADELPHIA,
MULTICON CONSTRUCTION CORPORATION,
WHITMAN AREA IMPROVEMENT COUNCIL,
PHILADELPHIA HOUSING AUTHORITY
ESTHER SIERRA MENDEZ,
JEAN THOMAS,
VI.
TABLE OF CONTENTS
ee eet Teer
EEE ESTE Se Eo ee a ON
Chppetiems Presented 3.2... ws. ee cece ce
Constitutional Provisions, Statutes, and
Rules of Civil Procedure Involved .......
ee eke esccecese
ET E -o, Sciccewecccceses
B. Factual Background ................
Reasons for Granting a Writ of Certiorari
POINT I
By Enjoining the Operation of the
Pennsylvania Urban Redevelopment
Law, 35 P.S. §1710(j) and Removing
Petitioner City Council From its
Legitimate Legislative Role Under
Pennsylvania State Law, the Courts
Below Abused Their Injunctive Power
POINT 2
The Decision Below Conflicts With the
Decisions of This Supreme Court as to
the Limitations Which Exist Concern-
ing a Federal Court’s Remedial Power
POINT 3
The Decision Below Conflicts With the
Decision of the Supreme Court of
Pennsylvania as to the Equitable
Power of the Courts to Pass Upon the
Merits of a Proposed Redevelopment
Contract | PEG: eich See eC hb es 6 ée ken
20
27
31
TABLE OF CONTENTS~ Continued)
EE a
og.
APPENDIX
Memorandum Order of District Court Dated
ik Wicbaelen
Memorandum Order of District Court Dated
DS TE Sess ves sce cesses veces
Resolution of the City Council of the City of
Philadelphia Dated December 21, 1978
Memorandum Order of District Court Dated
January 11, 1979 (Order challenged herein)
Order of United States Court of Appeals Con-
cerning Briefing Schedule, Dated January
I NR Sire as 5.505 & oad kao a Cues
Order of Court of Appeals Dated March 7, 1979,
Affirming the January 11, 1979 District
Court Memorandum Order (Order chal-
ID Fa oa oie ey kw bie dd an ¥0'6
Order of Court of Appeals Dated April 2, 1979,
Denying Petition for Rehearing ...........
Order of Court of Appeals Dated April 9, 1979,
Granting Motion for Stay of Mandate ......
The Pennsylvania Urban Redevelopment Law,
Se EE Ch G Ga ks dog eh Uses epee ecccsss.
Chart Listing Documents Concerning Im-
plementation Orders of District Court .....
Whitman Park Noise Study, Prepared by Dames
& Moore, Dated December 8, 1978 ........
Constitutional Provisions, Statutes, and Rules of
Civil Procedure Involved ..................
ii
A-12
A-29
TABLE OF CONTENTS~ Continued)
Page
FEDERAL RULES OF CIVIL PROCEDURE
Eo hat cay chuh kusN ah oks haha on ua A-54
SSE RCE SIRT Cg ate Onn nate pay ON Oem A-54
0k PRR Eas oda Ws bisa eae bas A-54
SN dis Boas a oe ae ie A-55
ED Rs, Dein wie. Wasa 0k TERE OSS Re A-56
TABLE OF CITATIONS
CASES: Page
Dandridge v. Williams, 397 U.S. 741, 25 L.Ed.
26 441,90 &. Ct. 1ISS CIGD) ..... cs cccnnss 5
Gautreaux v. Chicago, 480 F.2d 210 (7th Cir.
1973) cert. den. 414 U.S. 1144 (1974) ..... 23, 24
Granny Goose Foods, Inc. v. Brotherhood of
Teamsters and Auto Truck Drivers, 45 U.S.
423, 39 L.Ed. 2d 435, 94S. Ct. 1113 (1974) 30
Hills v. Gautreaux, 425 U.S. 284, 47 L.Ed. 2d
SF eat. Pe. ),. |) 4, 26, 29
Milliken v. Bradley, 418 U.S. 717, 41 L.Ed. 2d
1069, 94 S. Ct. 3112 (1974) (D.C. E.D. Mo.,
ha FG Dee La Coane wang anced x Sbicw 4, 26, 27
Parkview Heights Corp., et al. v. City of Black
Sr ae Oe Se ce EE oc haw evi ve swede 26
Rizzo v. Goode, 423 U.S. 362, 46 L.Ed. 2d 561,
Se ee EEE ivan wesw tes pabves oc's 5, 26, 29
Schenck v. Pittsburgh, et al., 364 Pa. 31, 70 A.2d
ee ee et CEN eae ea 31
TABLE OF CONTENTS—~ Continued)
Cases: Page
Swann v. Charlotte-Mecklenburg Board of Edu-
cation, 402 U.S. 1, 28 L.Ed. 2d 554, 91S. Ct.
WUT COOOR. ce nb.06b hoe aCe ea ercon 4, 26, 27
U.S. CONSTITUTION:
I BE | dec cikcktn be¥edes these kee 7
FEDERAL STATUTES:
BO UGA. GEES ics eb eknten sencstanereawes 3
GB UBL. GEBGS ave seses tes sis lecncneeteeeines 7
GB U.K. COG nis snips vashas Sercapes koeseess 7
PENNSYLVANIA STATUTES:
Pennsylvania Urban Redevelopment Law, Act
of May 24, 1945, P.L. 991, as amended, 35
P.S. SETEGR). 5. icc isstapenes 4, 15-22, 26, 29-31
RULES:
Federal Rules of Civil Procedure:
Rule Sb)... eckésstsv5 eee 30
Rule Gila) ..ccccscvecsueeeeeeee 30
Rule GO(b) .... os sadavee) cece ene 30
Rule Gila) ....0sssuissesbaaerae ee eee 30
Rule GXd) .... «0s <<00 55 be eee 30
City Council of the City of Philadelphia Resolu-
tion of December 21, 1978 ..............+. 11
iv
ft et en ee ee
RR me —
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1978
No. 78-
City Council of the City of
Philadelphia, Frank L. Rizzo, Mayor,
Hillel Levinson, Managing Director
and the City of Philadelphia,
Petitioners
v.
Resident Advisory Board of Philadelphia, et al.,
Respondents
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
The Petitioners CITY COUNCIL OF THE CITY OF
PHILADELPHIA, et al. respectfully pray that a Writ of
Certiorari issue to review the judgment order of the
United States Court of Appeals for the Third Circuit
entered on March 7, 1979.
2
I. OPINIONS BELOW
The Opinion of the District Court for the Eastern
District of Pennsylvania, dated January 11, 1979, is
not yet officially reported but is printed in the Appendix
hereto, (A-12 - A-28). The Appendix is hereafter cited as
(“A__”). No opinion was rendered by the United States
Court of Appeals for the Third Circuit. The Court of
Appeals’ Judgment Order of March 7, 1979, affirming
the January 11, 1979 judgment of the District Court is
not yet officially reported but is printed in the Appendix
hereto, (A-35).
CONSTITUTIONAL PROVISIONS, STATUTES AND
RULES OF CIVIL PROCEDURE INVOLVED
(See Appendix at A-53)
3
Il. JURISDICTION
The Judgment of the Court of Appeals for the Third
Circuit was entered on March 7, 1979. A timely Peti-
tion for Rehearing en Banc was denied on April 2,
1979, (A-36) and this Petition for Certiorari was filed
within ninety (90) days of that date. This Court’s juris-
diction is invoked under 28 U.S.C. § 1254(1).
4
III. QUESTIONS PRESENTED
1. Whether the approval or disapproval of the terms
of a proposed redevelopment contract for the Whitman
Park Townhouse Project is within the sole discretion
of the City Council of the City of Philadelphia pursuant
.o the provisions of The Pennsylvania Urban Redevel-
opment Law, 35 P.S. § 1710()).
2. Whether it is an abuse of the injunctive powers
of the tederal courts for a district court to enjoin the
operation of the Pennsylvania Urban Redevelopment
Law, 35 P.S. § 1710(j) in the absence of any eviden-
tiary finding or conclusion of law that said statute is
unconstitutional “on its face” or “by its operation.”
3. Whether, in light of Milliken v. Bradley, 418
U.S. 717, 41 L.Ed. 2d 1069, 94 S. Ct. 3112, it is inap-
propriate for a federal court to assume the role of a “de
facto legislature’”’ by deciding the “legislative ques-
tion” and usurping the powers and duties of the City
Council of the City of Philadelphia under a valid state
land-use statute.
4. Whether in light of Hills v» Gautreaux, 425 U.S.
284, 47 L.Ed. 2d 792, 96 S. Ct. 1538 (1976) it is inap-
propriate for a federal district court-in formulating a
remedy for a constitutional violation to “displace” the
rights and power accorded to a local legislature under
state land-use laws. (35 P.S. § 1710(j)). |
5. Whether, in light of Swann v. Charlotte-
Mecklenburg Board of Education, 402 U.S. 1, 28 L.Ed.
2d 554, 91 S. Ct. 1257 (1971), it is inappropriate for a
federal court to render a decision and vote of a munici-
pal legislature “null and void” in the absence of a find-
ing that said legislative action resulted in a constitu-
tional violation.
6. Whether it is a clear abuse of discretion for »
district court to order the execution of a complex Seven
Million Dollar redevelopment contract and agreement
of sale for a 4% acre building site where the district
5
court has never seen or read the contract in quesiton
and where said contract was not a part of the official
record before the lower court.
7. Whether a municipal legislature is entitled to an
evidentiary hearing where one of its legislative deci-
sions (votes) is challenged in the federal courts and
whether such a hearing should be held prior to the
courts’ rendering of a decision or imposing remedial
action concerning said disputed legislative action.
&. Whether it is a clear abuse of discretion for a
district court to deny a Motion for Modification of a
previously entered remedial decree (brought pursuant
to Federal Rule of Civil Procedure 60(b)(5) and (6)
where substantial evidence is presented as to a public
health hazard which would result from the implemen-
tation of said remedial decree.
9. Whether it is an \buse of the injunctive power of
the federal courts for a court to order the construction
of a housing project on a specific building site when the
redevelopment contract for said site has been disap-
proved for legitimate reaseps by a local legislature and
where alternative redevelopment of scattered site low-
income housing in the same area as the proposed proj-
ect will enable the municipality to develop or rehabili-
tate over twice as many units (250) as the proposed
ney.
. 10. Whether in light of Rizzo v. Goode, 423 U.S.
362 (1976) it is inappropriate for a federal district court
to “displace” the rights and power accorded the mayor
of a municipality under state and local statutes con-
cerning the enactment of land use ordinances.
11. In light of Dandridge v. Williams, 397 U.S.
471, 485, 25 L.Ed. 2d 491, 502, 90S. Ct. 1153 (1970) is
it inappropriate for a federal court to impose upon a
municipality the courts’ views of what constitutes wise
economic and social policy concerning the develop-
ment of low-income housing within the municipality’s
jurisdiction.
’ , an project (120 units) for the same amount of
6
STATEMENT OF THE CASE
A. PROCEDURAL HISTORY
This case concerns the construction of a federally
funded 120-unit, low-income housing project in an
Urban Renewal Area of South Philadelphia, known as
Whitman Park. The controversy over this housing
project dates back to 1956 when the Front Street and
Oregon Avenue, four and one-half (4%) acre site was
selected for a low-income housing project.
On November 5, 1976, the District Court for the
Eastern District of Pennsylvania, filed Findings of Fact
and Conclusions of Law and entered a judgment order
which directed the Philadelphia Housing Authority
(““PHA’’) the Redevelopment Authority for the City of
Philadelphia (‘““RDA”’) the City of Philadelphia, and the
Department of Housing and Urban Development
(“HUD”) to proceed immediately with “all necessary
steps” for the construction of 120 townhouses on a
building site located at Front Street and Oregon Av-
enue in the Whitman Park Urban Renewal Area of
Philadelphia. 425 F. Supp. 987 (Ed. Pa. 1976).'
This injunctive relief was imposed as a result of
three conclusions of law found by the District Court:
First, that the City failed to comply with an affirmative
duty under Title VIII of the 1968 Civil Rights Act, par-
ticularly 42 U.S.C. §3608(d)(5), to promote and en-
courage the construction of public housing projects
which would lessen racial concentration; second, that
the activities of City officials in connection with halt-
ing the Whitman Park Project had a racially dis-
criminatory effect violative of Title VIII of the 1968
Civil Rights Act and that the City’s activities had not
been justified by a compelling state interest; and third,
that the City, through its officials, acted with a racially
1. The 84 page November 5, 1976 Opinion is also reprinted in
the certified record of this litigation at (R. 24). Hereinafter the rec-
ord is cited as “R —.”’
7
discriminatory intent in attempting to halt construc-
tion of the Whitman Park Project. Of significance is the
fact that the November 5, 1976 Order of the District
Court did not make any finding of fact or conclusions of
law concerning Petitioner City Council of the City of
Philadelphia except to note the purpose of City Coun-
cil’s joinder in the litigation.
The Third Circuit Court of Appeals on August 31,
1977 affirmed the holding of the District Court that the
“City of Philadelphia” through its officials had violated
42 U.S.C. §1981 and §1982 by depriving respondents of
constitutional rights guaranteed by the Thirteenth and
Fourteenth Amendments to the United States Con-
stitution. 564 F.2d 126 (3rd Cir. 1977) (R. 68). The
Court of Appeals made no findings with respect to Peti-
tioner City Council of the City of Philadelphia.
A Petition for Certiorari was denied by this Su-
preme Court on February 27, 1978.
Ten days prior to the denial of Certiorari, on Febru-
ary 17, 1978, the District Court scheduled a hearing for
I ‘arch 3, 1978. At said hearing, all parties including
petitioners, advised the District Court that they in-
tended to comply with the District Court’s Order of
November 5, 1976. The District Court requested that
all parties attempt to develop a proposed “Implementa-
tion Order” which would set forth with particularity
the specific “necessary steps” which had to be taken by
the various parties in order for construction to begin on
the 120 unit townhouse project.
There was no consent agreement nor any other
written stipulation, or agreement between the parties
herein concerning the entire and complete terms of any
proposed implementation order.
On March 17, 1978, the District Court issued its
initial Implementation Memorandum and Order.
(A-1). Paragraph #15 of this March 17, 1978 Order
provided:
“15. City Council shall expeditiously consider
the new redeveloper and the redevelopment con-
8
tract, and final action by Council in connection
therewith shall be taken no later than November 9,
1978.” [Modified to December 29, 1978] (A-5).
Thus, the District Court held on March 17, 1978
that City Council’s consideration and action on the
proposed redevelopment contract was an essential or
“necessary step’”’ which must be undertaken as part of
the development process for the Whitman Park Town-
house Project.
After the District Court issued its March 17, 1978
implementation order, Respondents RAB and HUD
never raised any objection to the terms of Paragraph
#15 which provided for consideration and action by Pe-
titioner City Council with respect to the new proposed
redevelopment contract. The March 17, 1978 Im-
plementation Order was amended by the District
Court — four (4) times: On June 30, 1978, October 13,
1978, November 3, 1978 and November 13, 1978. (See
Appendix hereto for Chart on Provisions in the various
Implementation Orders relating to Petitioner City
Council at A-39).
The November 13, 1978 Order modified the time
deadline for City Council to consider and take final ac-
tion on the Redevelopment Contract. The deadline was
extended until December 29, 1978.
On November 21, 1978, pursuant to the provisions
of Paragraph #14 of the “Implementation Order” of the
District Court, as amended, RDA submitted to the
Philadelphia City Council, Bill No. 1706 which con-
tained the proposed new Redevelopment Contract and
other documents concerning the 120-unit Whitman |
Park Townhouse Project which was to be located at
Front Street and Oregon Avenue on a 4% acre site.
The Bill was assigned to the Rules Committee of
City Council, and public notice was given pursuant to
the provisions of the Philadelphia City Charter that a
public hearing on Bill No. 1706 would take place on
December 13, 1978.
ee
9
On December 13, 1978, the Rules Committee of the
City Council held a public hearing which lasted over
nine (9) hours and ended after 11:00 p.m. at night. (See
eo of City Council of December 21, 1978
The public hearings resulted in the Rules Commit-
tee voting Bill No. 1706 out of Committee “without
recommendation.” On December 21, 1978, City Coun-
cil debated the matter and voted to defeat Bill #1706.
The vote was eleven (11) Councilmen and Councilwo-
men against approval of the Bill — five (5) Councilmen
and Councilwomen in favor of approval of the Bill.
(One Councilwoman was absent and did not vote on
the matter.)
Thus, Petitioner City Council had by its legislative
action disapproved the proposed redevelopment con-
tract and proposed developer for the 120-unit housing
project.
About thirty minutes after Council’s disapproval of
Bill #1706, Petitioner City Council voted to approve a
Resolution providing for the development of 250 units
of low-income housing in the same urban renewal area
as the 120-unit townhouse project.? This resolution
was titled:
Resolution: Requesting the Redevelopment
Authority of Philadelphia to prepare plans and
2. City Council voted to disapprove the proposed Redevelop-
ment Contract for totally legitimate reasons. Council was aware
that the Federal Courts had ordered 120 units of low-income hous-
ing to be built in the Whitman Park neighborhood, but City Council
could not in good faith approve the proposed Redevelopment Con-
tract nor the proposed redeveloper nor the proposed building site for
the 120 houses on 4% acres which were shown to be environmen-
tally unsafe.
City Council voted to develop over twice as many homes (250)
on scattered sites in the same neighborhood, as the proposed Proj-
ect and for the same cost as the 120-unit project. The District Court
rejected City Council's proposal for 250 units on scattered sites
when the Court denied Petitioners’ Motion for Modification of the
November 5, 1976 Order. (See January 11, 1979 Order, A-26).
10
select a redeveloper for the development of not less
than 250 dwelling units on scattered sites within
the Whitman Urban Renewal Area under certain
terms and Conditions. (A-9).
This Resolution explains, in part, City Council’s
motivation and reasons for disapproving Bill #1706:
WuerEAS, As elected representatives of the
people of Philadelphia, the Council desires to do
what it thinks is right for those people while
cooperating with the Federal Judiciary, for which
it has the utmost respect; and
WHEREAS, Council continues to encourage the
development of subsidized housing for non-elderly
in non-impacted areas and needs the cooperation of
the U.S. Department of Housing and Urban Devel-
opment to that end; and
WHEREAS, it is the express intent of City Coun-
cil that the City of Philadelphia, through its of-
ficers and employees, shall administer all pro-
grams and activities relating to housing and urban
development in a manner which affirmatively
promotes fair and non-discriminatory housing;
therefore
Resolved, BY THE COUNCIL OF THE CITY
OF PHILADELPHIA, That the Redevelopment
Authority is hereby requested, when concurred in
by the Federal Court, to prepare an ordinance,
complete with plans, specifications, contracts and
any other necessary documents, for the develop-
ment of not less than two hundred and fifty (250)
units of housing for low-income persons, on scat-
tered sites, in the Whitman Urban Renewal Area.
Resolved, That upon receipt of such docu-
ments together with approval and commitment for
funding from the Department of Housing and
11
Urban Development, the Council will direct all
administrative agencies of the City having respon-
sibilities to act on such matters to do so forthwith
so that the development of housing units for low-
income persons in the Whitman Urban Renewal
Area may proceed.
Resolved, That certified copies of this Resolu-
tion shall be forwarded to the Federal Court for the
Eastern District of Pennsylvania, the Mayor, the
Philadelphia Housing Authority, the Philadelphia
Redevelopment Authority, the Philadelphia Hous-
ing Authority, the Philadelphia Planning Com-
mission, the Philadelphia Office of Housing and
Community Development, and the United States
Department of Housing and Urban Development.
(emphasis added). (A-11).
The December 21, 1978 Resolution of City Council
stated that the public hearings of December 13, 1978
established the following testimony and evidence con-
cerning the disapproved Redevelopment Contract for
the 120-unit townhouse project:
1. That the houses to be built as a “Modified
Turnkey III” Project would cost between $57,000
and $61,000 each, this without the original cost of
acquisition and demolition.
2. Expert testimony that the noise level at
the site exceed those levels determined by the U.S.
Environmental Protection Agency to be hazardous
to human health.
3. That a survey to satisfy the requirements
of the National Environmental Protection Act
(NEPA) was started by the Department of Housing
and Urban Development and then cancelled before
it was completed.
4. That no Turnkey III Project has been suc-
cessful in the entire United States, and that the
12
120 units could become a straight P.H.A. rental
project, voiding the planned purpose of home own- |
ership.
5. As of now, there are neither valid plans
nor workable financial proposals for a Modified
Turnkey III Project.
6. There was testimony that the proposed re-
developer’s qualifications and ability to fulfill the
Redevelopment Contract were questionable.
‘7. That it was almost unanimous that re-
habilitated units in scattered sites would better
serve the interest of all of the citizens of Philadel-
phia and im particular the interest of the low-
income families and minorities.
8. That housing units on scattered sites
would cost between fifteen and thirty thousand dol-
lars each, allowing for the production of many
more housing units and assist in renewing the
Whitman area.
9. That many other neighborhoods through-
out the City were against the development of proj-
ects such as proposed, but do favor a scattered site
approach.
10. That application, already taken by “Whit-
man Council” for scattered site rehabilitated hous-
ing in the Whitman Area resulted in 140 appli-
cants, 70 for white families, 70 for minority
families.”
(See December 21, 1978 Resolution of the City
Council of Philadelphia, (A-9).
On the very same day that petitioner City Council
voted to disapprove Bill #1706 (The Redevelopment
Contract and Developer) and approved the “Scattered
Site Resolution’ (December 21, 1978), Respondents
RAB filed with the District Court their ‘“‘Motion to Sus-
13
pend Operation of 35 P.S. §1710 for the Whitman Park
Townhouse Project and to order defendants, PHA and
RDA to execute the contract with the Selected Re-
developer to allow the construction of the project.”®
(R255)
On December 27, 1978, Petitioner, City Council of
the City of Philadelphia and other municipal peti-
tioners filed with the District Court their ““Memoran-
dum of Law in Opposition to [Respondent R.A.B.’s] Mo-
tion to Suspend Operations of 35 P.S. §1710 and other
injunctive relief.” (R267).
On December 28, 1978, Respondent R.A.B. sub-
mitted their Supplemental Motion to Suspend Opera-
tions of 35 P.S. §1710. On the same day, Petitioner, City
Council of the City of Philadelphia and other Municipal
Petitioners filed with the District Court their Motion for
Modification of the November 5, 1976 and March 17,
1978 Orders of the District Court, as amended. (R-
301).!
The District Court denied Petitioners’ request that
it grant leave to make oral argument on the issues con-
cerning Respondent’s Injunctive Motion.
The District Court did not provide Petitioner City
Council of the City of Philadelphia, et al., with an op-
portunity for a preliminary hearing or even a final trial
on the merits concerning Respondents’, RAB and
3. Respondent RAB’s Motion for relief which was filed with the
District Court on December 21, 1978 is in fact, a Motion for Perma-
nent Injunctive Relief. Respondent utilized thirty-three (33) words
to “title” this Motion for relief (they actually spelled out in the title
the relief requested in the body of their Motion.
4. Petitioners’ Motion for Modification of the November 5,
1976 and March 17, 1978 Orders requested in part that the District
Court modify its injunctive order to permit 250 units of low-income
housing to be developed on scattered sites in the same neigh-
borhood, and in place of, the Court-ordered 120-unit project to be
built on a 4/2 acre site. This Motion is in accordance with the provi-
sions of the resolution adopted by City Council on December 21,
1978.
14
HUD’s, Motion for Injunctive Relief or Petitioners’ Mo-
tion for Modification.
The District Court issued its Memorandum Order
on January 11, 1979, as to which this Petition per-
tains, (see A-12), whereby the Court granted Respon-
dents’ requested injunctive relief by (1) ordering that
the operation of 35 P.S. §1710 (The Pennsylvania
Urban Redevelopment Law) is “‘suspended,” (2)
amending its Memorandum Order of March 17, 1978 to
totally exclude the Philadelphia City Council from the
procedural process whereby the Townhouse Project
would be constructed in Philadelphia, (3) in effect, de-
claring and rendering the December 21, 1978 legislative
vote by Petitioner City Council (disapproving the pro-
posed redevelopment contract) as “null and void,” (4)
the District Court clothed itself in the robes of a “de
facto” legislature by enjoining the Redevelopment Au-
thority of the City of Philadelphia, the Philadelphia
Housing Authority® and HUD to execute the proposed
Redevelopment Contract and Agreement of Sale with
A&R Development Corp./The Watertord Group, Inc. on
or before January 19, 1978, (5) the Memorandum
Order of the District Court of January 11, 1979 also
denied Petitioners Motion for Modification of the Dis-
trict Court’s November 5, 1976 Order.
On January 19, 1979, the Third Circuit Court of
Appeals granted Petitioners’ Motion to Stay the Janu-
ary 11, 1979. Order of the District Court. The Court of
Appeals ordered an expedited briefing schedule.
On March 7, 1979, the Third Circuit Court of Ap-
peals issued a Judgment Order, without opinion, and
the Clerk of the Court of Appeals entered judgment in
accordance therewith on the same date. (A-32). Said
Judgment-Order affirmed District Court’s Order of
January 11, 1979, including its injunctive and declara-
tory relief. (A-35).
5. Both PHA and RDA were party defendants below, but are
state agencies, not Philadelphia municipal agencies.
15
On March 20, 1979 Petitioner filed in the Court of
Appeals a Petition for Rehearing In Banc. The Third
Circuit Court of Appeals denied said Petition on April 2,
1979. (A-36).
On April 9, 1979, the Third Circuit Court of Ap-
peals granted Petitioner’s Motion for Stay of Mandate
pending the filing of this Petition for Certiorari by May
9, 1979. (A-37).
B. FACTUAL BACKGROUND
1. PETITIONER CITY COUNCIL
Respondent Resident Advisory Board (RAB) filed
their Complaint in this litigation in the United States
District Court for the Eastern District of Pennsylvania
on June 25, 1971. Respondent delayed over three (3)
years before attempting to join Petitioner City Council
of the City of Philadelphia as a party herein. Respon-
dent RAB filed their Motion to Join City Council on May
16, 1975 (R7). Petitioner City Council is the legislature
for the City of Philadelphia. It consists of 17 Council-
women and Councilmen representing the citizens of
the City of Philadelphia either by “district” or in an
“at-large” capacity.
As a result of Respondent RAB’s 1975 Motion to
Join City Council, the issue of whether or not the Dis-
trict Court has the equitable power to compel City
Council to “approve” an ordinance enabling the Re-
development Authority (RDA — a state agency) to con-
tract with a new developer for the housing project was
initially raised (R7). In said Motion, Respondent RAB
asserted that joinder of Petitioner City Council was
necessary ‘‘so that complete relief can be afforded to
plaintiffs.”
Respondent RAB themselves, after citing 35 P.S.
$1710(j) of the Pennsylvania Urban Redevelopment
Law (A-38) stated:
That if Multicon Properties, Inc. is for finan-
cial reasons unable to complete construction of the
16
Whitman Townhouses, a new developer will need
to be appointed, which may pursuant to the above
cited statutory provision, [35 P.S. §1710(j)] need to
be approved by City Council. (R-11)
Thus, Respondent RAB, in May of 1975, recognized
City Council’s role pursuant to the provisions of 35 P.S.
§1710(j). It was the existence of the Pennsylvania
Urban Redevelopment Law 35 P.S. §1710(j) which
formed the basis for Respondent RAB’s Motion to join
City Council as a party herein. Respondents recognized
over three (3) years ago that pursuant to the Pennsyl-
vania Urban Redevelopment Law, Petitioner City
Council had an important legislative role to fulfill in
order for any housing project to be constructed in the
City limits of Philadelphia. (R7).
The District Court in 1975, granted Respondents’
Motion and joined City Council as a party defendant
‘*. . in the event the Council was needed to insure that
the Court could render appropriate relief.” 425 F. Supp.
987 at p.995 (E.D. Pa. 1976).
Respondents have never alleged and/or proven
that City Council or the individual Councilmen and
Councilwomen have in any way taken action which
has caused Respondents herein any injury or de-
prived them of any rights or interests. Both the opin-
ion of the District Court at 425 F. Supp. 987 (E.D. Pa.
1976), and the opinion of the Third Circuit Court of
Appeals at 564 F.2d 126 are totally void of any claim or
finding of fact with respect to Petitioner City Council or
its members. The opinions merely note the purpose for
which City Council was joined as a party herein. Prior
to the January 11, 1979 Order by the District Court,
which is the object of this appeal, there had not been
any ruling, by any Court, that Petitioner, City Council
has, by its actions, infringed upon Respondents rights
or interests. In fact the January 11, 1979 Order does
not make any specific finding as to this alleged wrong
which has never in fact occurred.
17
2. THE PENNSYLVANIA URBAN RE-
DEVELOPMENT LAW (35 P.S. §1710(j) RE-
QUIRES APPROVAL OF REDEVELOPMENT
CONTRACTS BY CITY COUNCIL PRIOR TO
THE CONTRACTS’ EXECUTION.
The Pennsylvania Urban Redevelopment Law (35
Purden’s Statutes (P.S.) 1701, et seq) (A-38) was
enacted on May 4, 1945, P.L. 991 §1, et seq. and has
been amended by the Pennsylvania State Legislature
several times. This law provided for the establishment
of Redevelopment Authorities and specifies the rela-
tionship between said authorities and the municipality
in which it is located.
It is 35 P.S. §1710 of the Pennsylvania Urban Re-
development Law which Respondent RAB challenged
in their injunctive motion which resulted in the Janu-
ary 11, 1979 Order. This State Statute provides for the
preparation and adoption of redevelopment proposals,
and redevelopment contracts concerning housing
projects to be developed within the State of Pennsylva-
nia. 35 P.S. §1710(j) provides as follows:
‘‘(j) The redevelopment proposal may contain
the form of the redevelopment contract with the
redeveloper selected and upon approval by the
governing body of the proposal, as hereinbefore
provided, the Authority is authorized to execute the
said redevelopment contract. If the proposal does
not contain the form of the redevelopment con-
tract with the redeveloper selected, the Authority
shall not execute a redevelopment contract with
a redeveloper thereafter selected, until the said
redevelopment contract shall have been approved
by the governing body. No additional public
hearing, notice or publication shall be required
with respect to such approval. (Emphasis
supplied). (See A-38)
18
Under 35 P.S. §1710(j) the Philadelphia Redevel-
opment Authority (a State agency) cannot execute the
1979 proposed Whitman Park Redevelopment Contract
with the new proposed redeveloper for the Whitman
Park Townhouse Project without Petitioner City Coun-
cil’s*® (1) approval of the terms of the Redevelopment
Contract, and (2) making a finding that said redevel-
opment contract is in substantial conformity with the
redevelopment proposal previously passed by City
Council.
The District Court recognized the existence and
operation of 35 P.S. §1710(j) in 1975 when it first
joined City Council as a party herein and again when it
issued its Implementation Order of March 17, 1978.
(A-5)
Respondent RAB stated their recollection of the
facts surrounding the District Court’s decision to in-
clude City Council in its Implementation Order in Re-
spondents’ ‘Memorandum in Support of Motion to
Suspend Operations of 35 P.S. §1710 for the Whitman
Townhouse Project and To Order The Defendants to
Proceed With Construction”:
“After the Supreme Court denied certiorari
counsel for 2.] parties met with the court to develop
an agreed vehicle and method for implementation
of the extent Order of November 5, 1976. The City
Solicitor argued, over plaintiffs’ dissent, that 35
P.S. §1710 required that an amended redevelop-
ment contract naming a new developer had to be
submitted to City Council and the Mayor for ap-
proval. Plaintiffs argued that §1710 only applied to
the original development proposal, and since City
Council had already approved the Whitman Project
in Bill No. 2037 on October 27, 1970, and further-
more in light of the Court’s affirmed holding that
the City of Philadelphia violated the Fourteenth
6. (The “governing body” as defined in 35 P.S. §1701 et seq.)
19
Amendment to the Constitution by suspending
construction of the Whitman Project, the Court
could order the defendants to execute contracts
with the selected developer and allow construction
to commence without the approval of City Council.
The Court determined to take the most cautious
route, however, and the parties agreed to a time-
table, which has since been modified at the request
of various parties, which included consideration
of the developer and the Redevelopment Contract
by the City Council and the Mayor.” (Emphasis
added). (R260).
The District Court included Petitioner City Coun-
cil’s consideration and vote on the proposed Seven Mil-
lion Dollar Redevelopment Contract as mandatory step
#15 in the Court’s March 17, 1978 Implementation Or-
der. (A-5).
Petitioner City Council carried out its responsi-
bilities under 35 P.S. §1710(j) and Paragraph #15 of
the District Court’s November 13, 1978 Implementa-
tion Order.
Petitioner City Council held public hearings on De-
cember 13, 1978 with respect to the proposed 1979 Re-
development Contract and proposed redeveloper for
the Whitman Townhouse Project. Said public hearings
lasted over nine (9) hours. On December 21, 1978,
(eight (8) days prior to the District Court’s deadline of
December 29, 1978, under Paragraph #15 of the
March 17, 1978 Implementation Order as amended)
City Council took “final action” with respect to Bill
#1706 (concerning the proposed Redevelopment Con-
tract and Redeveloper), by voting 11-5 to disapprove
said Bill.
20
REASONS FOR GRANTING THE WRIT
POINT I
BY ENJOINING THE OPERATION OF THE
PENNSYLVANIA URBAN REDEVELOPMENT
LAW, 35 P.S. §1710(J) AND REMOVING PETI-
TIONER CITY COUNCIL FROM ITS LEGITI-
MATE LEGISLATIVE ROLE UNDER PENN-
SYLVANIA STATE LAW, THE COURTS BELOW
ABUSED THEIR INJUNCTIVE POWER.
By its Injunctive Order of January 11, 1979, (as
affirmed without opinion by the Court of Appeals) the
District Court enjoined the operation of an important
State statute (The Pennsylvania Urban Redevelopment
Law, 35 P.S. §1710(j)) (See A-38) which empowered
Petitioner City Council of the City of Philadelphia with
the legislative duty and prerogatives to review, evalu-
ate and decide by legislative vote, the question of
whether to approve or disapprove proposed “redevel-
opment contracts” concerning land use in the City of
Philadelphia.
City Council had voted (11-5) on December 21,
1978 to disapprove the proposed redevelopment con-
tract for the Whitman Park Townhouse Project. The
District Court, without ever even seeing or evaluating
the disputed Seven Million Dollar ($7,000,000) con-
tract, without affording Petitioners oral argument nor
any hearing whatsoever on the matter of City Coun-
cil’s decision, granted Respondents’ Motion to Suspend
the Operation of the Pennsylvania Urban Redevelop-
ment Law and further ordered that the proposed con-
tract be executed.
In its January 11, 1979 Memorandum Order, the
District Court made no findings of fact or conclusions
of law concerning petitioner City Council which could
in any way support the imposition of the injunctive re-
lief as ordered. City Council voted to disapprove the
21
proposed redevelopment contract for totally legitimate
reasons including the protection of the health and
safety of the citizens of Philadelphia, particularly those
citizens who would have resided in the proposed town-
house project.’ The District Court made no findings as
to the purpose or justifications behind City Council’s
December 21, 1978 legislative actions. The lower
Court failed to examine if the December 21, 1978 legis-:
lative actions of the Philadelphia City Council had any
negative “impact” upon respondents herein. A careful
review of City Council’s legislative action clearly estab-
lishes that Respondents would not suffer any harm as a
result thereof, since on the same day as City Council
voted to disapprove the proposed redevelopment con-
tract, Council passed a resolution calling for the devel-
opment of 250 units of low-income housing on
scattered-sites throughout the same neighborhood
where the proposed Front and Oregon Avenue building
site is located. The critical element in this litigation is
the development of low income homes in a non-racially
impacted area. The terms of the redevelopment con-
tracts for such housing units and the specific locations
for each home is a matter rightfully within the discre-
tion of the local government, not the federal courts.
Through its injunctive order of January 11, 1979,
the District Court “deleted” the important provisions of
the Court’s implementation Order which were man-
dated under Pennsylvania State Law, 35 P.S. §1710()).
7. The record and evidence before City Council reveals that the
Townhouse Project site at Front and Oregon Avenue is an unsafe
site for residential use as a result of the extremely high noise levels
which exist there. This was the conclusion of a scientific Noise
Study conducted at the Whitman Park Townhouse Project site at
Front Street and Oregon Avenue. (728R). The study was performed
by Dr. Frederick Kessler of the highly respected firm of Dames and
Moore, Engineering Consultants. Dr. Kessler’s Report was sub-
mitted to City Council during his testimony before City Council’s
Rules Committee Public Hearings on Bill #1706. See A-43 for said
Noise Study.
22
Paragraph #15 specified that City Council was to con-
sider and take final action upon the proposed redevel-
opment contract.
It should be noted that the ‘deletion’ of paragraph
#15 from its Implementation Order was two weeks
after the fact. Petitioner City Council actually carried
out the mandate of paragraph #15 by voting on De-
cember 21, 1978 to disapprove the redevelopment con-
tract. The ‘deletion’ of paragraph #15 on January 11,
1979 renders Petitioner City Council’s legislative deci-
sion concerning the Redevelopment contract for the
Whitman Park Townhouse Project ‘null and void’ or as
if such legislative action never took place. The fact re-
mains City Council considered the proposed new Re-
development Contract and took ‘final action’ upon it by
voting 11-5 against approval of this contract. Said De-
cember 21, 1978 legislative decision by Petitioner City
Council was valid and conformance with Council’s
duties and responsibilities under the Pennsylvania
Urban Redevelopment Law, 35 P.S. §1710(j). Said
Councilmanic decision was also made pursuant to, and
in conformance with, the provision of paragraph #15 of
the District Courts Implementation Order of November
15, 1978 (A-8) which instructed City Council to act
upon the Redevelopment Contract.
The District Court just ‘disagreed’ with Peti-
tioner City Council’s valid legislative decision. The
Court issued an order which decrees City Council’s
legislative action of December 21, 1978 as ‘non-
existent’ and enjoins the Redevelopment Authority
(RDA) to execute a Seven Million Dollar ($7,000,000)
redevelopment contract in violation of 35 P.S. §1710(j)
which mandates that RDA must get City Council ap-
proval of the Redevelopment Contract before RDA
executes the contract with the new redeveloper.
Of further importance, is the fact that City Council
had public hearings and lengthy consideration of the
actual terms of the redevelopment contract. The Re-
23
development Contract was submitted to City Council
as an Exhibit to Bill #1706 (R-175), while the Dis-
trict Court, was never presented on the record, or
otherwise with a copy of this proposed Redevelop-
ment Contract. The Court never saw its terms or con-
ditions and certainly never compared the new proposed
contract with the old expired 1970 redevelopment con-
tract executed by Multicon, Inc. (the original devel-
oper). There just did not exist any evidentiary basis for
the District Court to make any decisions concerning
said proposed contract, let alone enjoin the operation of
a valid State Statute and render ‘null and void’ the rea-
soned legislative decisions of Petitioner City Council of
the City of Philadelphia.
It is fundamentally unwise for a federal district
judge to assume the role and responsibilities of a local
legislature concerning redevelopment and land use
within said legislatures’ jurisdiction. By ordering that
the redevelopment contract (which was never read by
the Court below) be executed, the lower courts have in
effect placed themselves into the role of a “de facto”
legislature and decided from within an “evidentiary
vacuum” the legislative question which was the proper
concern of Petitioner City Council.
The District Court states in its January 11, 1979
Memorandum:
“In any event, the law is clear that this Court,
for the purpose of remedying the Constitutional
violations, has the power to suspend the operation
of such a statute, [35 P.S. §1710(j)] (A-25).
The Court then cites Gautreaux v. Chicago, 480
F.2d 210, 214 (7th Cir. 1973), cert. denied, 414 U.S.
1144 (1974) as legal authority that “The District Court
has undoubted power to suspend the operation of the
state statute.” |332a].
The District Court incorrectly cites the 1973 deci-
sion of the Seventh Circuit Court of Appeals in Gau-
24
treaux v. Chicago, 480 F.2d 210(7th Cir. 1973) as prec-_
edent for the injunctive relief which it has granted by
its January 11, 1979 Order. The circumstances in
Gautreaux were extremely different than those which
exist in the instant matter. In Gautreaux the District
Court, after a full hearing on the matter, found that
for over nine months no committee of the City Council
of Chicago had conducted hearings as to the acquisi-
tion of property by the Chicago Housing Authority
(CHA), which had previously been ordered to increase
the supply of dwelling units for low-income families.
This inaction by Chicago’s City Council occurred even
though CHA had proposed sites for over 1500 dwelling
units (scattered site units). The Chicago City Council
had not approved the acquisition of any property by
CHA for the purpose of providing housing in confor-
mity with a previous judgment order of the District
Court. The District Court further found the failure of
Chicago’s City Council to conduct hearings and to ap-
prove any property acquisition for over 9 months was
unjustified since there had been no showing of super-
vening necessity therefor or any reason at all, and the
evidence showed that many sites were suitable for ap-
proval of Council. The District Court found as a conclu-
sion of law that the inaction of Chicago’s City violated
plaintiffs’ Fourteenth Amendment rights and further
held that the effect of the operation of a particular Il-
linois statute which mandated City Council approval of
all land acquisition of CHA was to prevent the Court
from providing a full remedy for past unconstitutional
acts of the City of Chicago. The District Court ordered
that the Illinois Statute “shall not be applicable to
CHA’S actions.” 342 F. Supp. 827 at 830 (1972).
The Seventh Circuit Court of Appeals at 480 F.2d
210 (1973) affirmed the District Court’s injunction and
made additional findings of fact and conclusions of law
holding that the Chicago City Council-“. . . by its ear-
lier discriminatory action and later by its inaction
25
has made itself a party to the discrimination as a joint
participant.” 480 F.2d at 214. This holding was based
on the fact that prior to 1969 the Chicago City Counc?!
had vetoed over 9912% of the public housing sites pro-
posed for development in white areas while it rejected
only 10% of such proposed sites located in minority
areas. Further, City Council had taken virtually no ac-
tion on any proposed sites for over 9 months after the
District Court had ordered that 75% of all public hous-
ing dwelling units be constructed in white areas. The
Court of Appeals in Gautreaux held “. . . the record
supports the trial courts’ conclusion that only race can
explain the defendant’s action and subsequent inac-
tion.” 480 F.2d 210 (1973).
Contrary to the Gautreaux case, there had been no
delay whatsoever by Petitioner City Council of Phila-
delphia with respect to taking legislative action on the
proposed redevelopment contract. In addition, the rec-
ord of City Council’s actions of December 21, 1978 es-
tablishes that Council passed a Resolution containing
a framework whereby the development of 250 scat-
tered sites low-income housing units could be im-
plemented in the Whitman Park Urban Renewal Area.
No evidence whatsoever has been presented by Re-
spondents herein which could establish that City
Council, by its actions of December 21, 1978 has been
in active concert or “joint participation’? with other
parties herein who have previously been found to have
violated plaintiffs’ Fourteenth Amendment rights. In-
deed there has been no allegation herein that City
Council in disapproving the redevelopment contract
has acted with racial intent or purpose as had been
established in the Gautreaux case.
The absence of all of the critical elements of proof
herein distinguishes the Gautreaux case.
A federal court cannot enjoin the operation of a
state statute absent a determination that said Statute,
on its face or by its operation, infringes upon constitu-
tional rights.
26
The equity powers of the Federal Courts to grant
remedial injunctive relief which inteferes with the op-
eration of a local governmental entity is not plenary. It
may be exercised only on the basis of a constitutional
violation. Hills v. Gautreaux, 425 U.S. 284, 293, 47
L.Ed 2d, 792, 96 S.Ct. 1538 (1976); Milliken v. Brad-
ley, 418 U.S. 717, 738, 41 L. Ed.2d 1069, 94 S.Ct. 3112
(1974); Swann v. Charlotte-Mecklenburg Board of
Education, 401 U.S. 1, 16, 28 L.Ed. 2d 554 (1971). See
also Park View Heights Corp., et al v. City of Black
Jack, et al, (D.C. E.D. Mo. 7-78), 454 F.S. 1223; Rizzo
v. Goode, 423 U.S. 362, 377, 46 L.Ed. 2d 561, 96 S.Ct.
598 (1976).
Respondents have never alleged that 35 P.S.
§$1710(j) is in any manner unconstitutional “on its
face.” The “essence” of Respondents’ allegations con-
tained in their injunctive motion is that the “opera-
tion” of 35 P.S. §1710(j) has the effect of depriving
plaintiffs of certain constitutional rights. This Court
should note, however, that Respondents, in their Mo-
tion to suspend the operations of 35 P.S. §1710(j) have
not specified which, if any, of their constitutional
rights have been infringed upon by the operation of this
statute.
The operation of 35 P.S. §1710(j) has not had the
effect of infringing upon any rights or interests of Re-
spondents herein.
In affirming the District Courts’ grant of relief, the
Circuit Court authorized the District Court to stray far
beyond the bounds of judicial power, experience and
competence. The Circuit Court ignored or overlooked
the decisions of this Court which your Petitioners sub-
mit preclude the type of injunctive relief granted
herein. To remedy these errors, Petitioners respectfully
request this Court to grant this petition for certiorari.
27
POINT 2
THE DECISION BELOW CONFLICTS WITH
THE DECISIONS OF THIS SUPREME COURT
AS TO THE LIMITATIONS WHICH EXIST CON-
CERNING A FEDERAL COURT’S REMEDIAL
POWER.
(A) THE CONFLICT BETWEEN THE DECI-
SION BELOW AND THIS COURT’S DECISION IN
SWANN v. CHARLOTTE-MECKLENBURG BOARD
OF EDUCATION, 402 U.S. 1, 16, 28 L.Ed. 2d 554, 91
S. Ct. 1257 (1971).
The decision of the district court, as affirmed with-
out opinion by the Third Circuit Court of Appeals, is in
direct conflict with the holding of this Court in Swann
v. Charlotte-Mecklenburg Board of Education, supra,
that the remedial power to do equity may be exercised
“only on the basis of a constitutional violation” and
the nature of the violation determines the scope of
remedy (Id at 402 U.S. 15, 16). The January 11, 1979
Order of the District Court herein does not contain any
conclusion of law that a constitutional violation has
occurred as a result of City Council’s vote on Decem-
ber 21, 1978. On the contrary, the disapproval of City
Council of the proposed redevelopment contract for
the 120 unit townhouse project has never been pro-
ven to have the effect of depriving anybody of their
constitutional rights and in fact no constitutional
violation has occurred as a result of City Council’s
legislative action.
(B) THE CONFLICT BETWEEN THE DECI-
SION BELOW AND THIS COURT’S DECISIONS IN
MILLIKEN v. BRADLEY, 418 U.S. 717, 41 L.Ed. 2d
1069, 94 S. Ct. 3112.
The decision of the District Court is in direct con-
flict with the holding of this Court in Milliken v. Brad-
28
ley, supra, that a district court should not, by its reme-
dial orders place itself in the position of a “de Facto
legislative authority.” Under Pennsylvania State law,
petitioner City Council of the City of Philadelphia has
the legislative prerogative to approve or disapprove
proposed redevelopment contracts. Under 35 P.S.
§1710(j) of the Pennsylvania Urban Redevelopment
Law, the Redevelopment Authority (a State agency)
may not execute a redevelopment contract unless City
Council approves the terms of said contract and finds it
to be in conformance with a previously passed redevel-
opment “proposal.” After Petitioner City Council voted
11-5 to disapprove the proposed redevelopment con-
tract, the District Court, through its January 11, 1979
Order in effect held said vote to be ‘‘null and void” and
substituted its own decision with respect to the legisla-
tion question.
The lower court in effect ““approved” the proposed
redevelopment contract and ordered by injunctive de-
cree that the Redevelopment Authority execute said
contract. The District Court has wrongfully placed it-
self into the role of a “de facto legislature” for the City
of Philadelphia. The Court ordered the execution of a
Seven Million Dollar ($7,000,000) major development
contract including the sale of 4% acres of land without
ever reading or evaluating the disputed redevelop-
ment contract. The document was never submitted to
the lower court on the record through any proceeding
or pleading.
Without reading the disputed contract, the District
Court had no basis whatsoever to make any ruling con-
cerning this proposed contract. Ordering the execution
of an ‘“‘unseen” contract is a clear abuse by the District
Court of its equitable powers and a wrongful intrusion
into the legislative role of Petitioner City Council of the
City of Philadelphia.
29
(C) THE CONFLICT BETWEEN THE DECI-
SION BELOW AND THIS COURT’S DECISION IN
HILLS v. GAUTREAUX, 425 U.S. 284, 293, 306 47
L.Ed. 2d 792, 801, 96 S. Ct. 1538 (1976).
The decision of the district court as affirmed with-
out opinion by the Third Circuit Court of Appeals is in
direct conflict with the holding of this Court in Hill v.
Gautreaux that there are fundamental limitations on
the remedial powers of the federal courts to restructure
the operation of local and state governmental entities.
The power is not plenary and in fashioning a remedial
decree the District Court must not displace the rights
and powers accorded local government entities under
federal and state housing statutes and existing land-
use laws. It is clear the January 11, 1979 Order of the
District Court herein “displaces” the rights and powers
of Petitioner City Council pursuant to the Pennsylva-
nia Urban Redevelopment Law, 35 P.S. §1710(j).
While the District Court may have the equitable power
to require that 120 units of low-income housing be
developed in non-racially impacted neighborhoods, it is
the legislative right and obligation of Petitioner City
Council to approve or disapprove any proposed re-
development contract and decide the location within
said ‘‘non-impacted”’ areas to develop those 120
houses.
(D) THE CONFLICT BETWEEN THE DECI-
SION BELOW AND THIS COURT’S DECISIONS IN
RIZZO v. GOODE, 423 U.S. 362, 96 S. Ct. 598, 96
L.Ed. 2d 561, 607 (1976).
The decision of the district court is in direct conflict
with the holding of this Court in Rizzo v. Goode, supra,
that instructs the federal courts to be restrained by the
principles of equity, comity and federalism where in-
junctive relief is sought against those in charge of the
30
executive and legislative branch of local government.
The district court granted respondents Motion for In-
junctive Relief without affording petitioners due pro-
cess under the law. The Court refused to adhere to the
mandate of the Federal Rules of Civil Procedure which
require that an evidentiary hearing be held prior to the
imposition of permanent injunctive relief. The Court
granted Respondents’ injunction motion without af-
fording Petitioners a hearing or oral argument on the
claims for injunctive relief. The District Court has
breached the balance of power which separates the
federal equitable powers from a state’s administration
of its own law.
(E) THE CONFLICT BETWEEN THE DECI-
SION BELOW AND THIS COURT’S DECISION IN
GRANNY GOOSE FOODS, INC. v. BROTHERHOOD
OF TEAMSTERS AND AUTO TRUCK DRIVERS, 45
U.S. 423, 432, 39 L.Ed. 2d 435, 94 S. Ct. 1113 (1974).
The decision of the District Court is in direct con-
flict with the holding of this Court in Granny Goose
Foods, Inc. v. Brotherhood of Teamsters and Auto
Truck Drivers, supra, that an evidentiary hearing is
required as a prerequisite to the issuance of an order
for a preliminary or permanent injunction. Petitioners
were never afforded an opportunity for an evidentiary
hearing prior to the District Court’s January 11, 1979
Order whéreby Pennsylvania state law 35 P.S. §1710(j)
was enjoined in addition to other permanent injunctive
relief.
Petitioners are entitled to an evidentiary hearing
where they could clearly defend the validity of City
Council’s Legislative Actions of December 21, 1978.
The District Court’s denial of a hearing also resulted in
the Court’s violation or non-compliance with several
important Federal Rules of Civil Procedure including
Rule 39b; 52a; 60b; 65a; and 65d.
31
POINT 3
THE DECISION BELOW CONFLICTS WITH
THE DECISION OF THE SUPREME COURT OF
PENNSYLVANIA AS TO THE EQUITABLE
POWER OF THE COURTS TO PASS UPON THE
MERITS OF A PROPOSED REDEVELOPMENT
CONTRACT.
The decision of the District Court is in direct con-
flict with the holding of the Supreme Court of the State
of Pennsylvania in Schenck v. Pittsburgh, et al., 364
Pa. 31 (1950) 70 A.2d 612, that the Courts do not have
the equitable power to pass upon the merits of a pro-
posed redevelopment contract since, under the Penn-
sylvania Urban Redevelopment Law, only Petitioner
City Council is empowered with the right and obliga-
tion to approve or reject a proposed redevelopment con-
tract. The District Court’s Order rendered “null and
void” the December 21, 1978 legislative action of City
Council and “deleted” (or totally removed) City Council
from its legislative role under 35 P.S. §1710(j). The
District Court has intruded into an area of legislative
concern which has been declared by the Pennsylvania
Supreme Court to be outside the jurisdictional powers
of the Courts.
32
CONCLUSION
For the foregoing reasons, your Petitioners respect-
fully submit that a Writ of Certiorari should issue to
review the Judgment Order of the United States Court
of Appeals for the Third Circuit.
Respectfully sybmitted,
MARK JURIKSON
Deputy City Solicitor
SHELDON L. ALBERT
City Solicitor
201 City Hall
Philadelphia, PA 19107
(215) MU 6-6205
33
CERTIFICATE OF SERVICE
I hereby certify that on this 8th day of May 1979,
three copies of the Petition for Writ of Certiorari were
hand delivered to:
Walter S. Batty, Esquire
Assistant City Attorney .
3310 U.S. Courthouse
Independence Mall West
601 Market Street
Philadelphia, Pennsylvania 19106
Attorney for Respondent HUD
Harold R. Berk, Esquire
Jonathan M. Stein, Esquire
Community Legal Services
Sylvania House
Juniper and Market Streets
Philadelphia, Pennsylvania 19107
Attorneys for Respondent RAD
William F. Hall, Jr., Esquire
994 Curtis Building
Philadelphia, Pennsylvania 19106
Attorney for Respondent HUD
Joseph M. Gindhart, Esquire
2015 Land Title Building
Broad and Sansom Streets
Philadelphia, Pennsylvania 19110
Attorney for WAIC
Peter A. Galante, Esquire
1234 Market Street
Philadelphia, Pennsylvania 19107
Attorney for RDA
34
Harold Cramer, Esquire
Arthur Lefco, Esquire
Fidelity Building, 15th Floor
Philadelphia, Pennsylvania 19109
Attorneys for PHA
Charles W. Bowser, Esquire
1845 Walnut Street
Suite 1300
Philadelphia, Pennsylvania 19103
I further certify that all parties required to be
served have been served.
a al oe
MARK JURIKSON Appendix
Deputy City Solicitor
Counsel for Petitioner
201 City Hall
Philadelphia, Pa. 19107
A-1
IN THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
RESIDENT ADVISORY BOARD, et al. Civil Action
Vv. )
FRANK L. Rizzo, et al. No. 71-1575
MEMORANDUM
BRODERICK, J. March 17, 1978.
For the reasons set forth in the Court’s memoran-
dum of March 9, 1978, a conference attended by coun-
sel for all parties was held in chambers on March 10,
1978. The purpose of the conference, as announced in
the March 9, 1978 memorandum, was to give the par-
ties an opportunity to agree as to the procedures which
each defendant should take to accomplish the con-
struction and occupancy of the 120 townhouses at the
earliest date.
At the conference, it was agreed that counsel for
the Redevelopment Authority (‘‘RDA’’), the City of
Philadelphia (‘“‘the City’), and the Resident Advisory
Board (‘““RAB”’) would meet in an effort to arrive at an
agreement concerning the necessary procedures and a
time-schedule. Counsel for these defendants submitted
to the Court on March 13, 1978 a proposal which set
forth certain necessary procedures and a time-
schedule. Counsel for all the other parties were given
the opportunity to comment on the submitted proposal.
The Court received comments from RAB, RDA, Phila-
delphia Housing Authority (‘‘PHA’’) and the City,
which comments contained objections to a few of the
proposals.
A-2
The procedures and time-schedule agreed to by the
parties, with all of the provisions objected to deleted,
read as follows:
“1. The parties to this action shall make all good
faith efforts to expedite implementation of the follow-
ing procedures whereby a developer shall be obtained
for the construction of the Whitman Townhouse Proj-
ect.
“9. The dates which are specified herein for the
completion of particular phases in the “developer-
selection process” are to be adhered to. Should circum-
stances cause or necessitate any revision or extension
of specified dates, the parties shall immediately report
such information, in writing, to the Court and to coun-
sel of record. Counsel for the parties shall have three
(3) days from the time of written notification concern-
ing a revision of a particular date to submit to this
Court, in writing, any comments thereon. Adjustment
of the specified dates may be made by this Court where
necessary.
“3. Multicon Properties, Inc. (““MPI’’) shall, as
soon as possible, but no later than March 17, 1978, by
fee simple deed for a consideration of $1.00, convey to
RDA title to the premises generally referred to as the
Front and Oregon Site. MPI shall provide RDA with the
following documents:
a. Certificate of Incorporation by Multicon
Properties, Inc. (Ohio Corporation). Certified copy
of resolution of Board of Directors (and approval of
shareholders, if same is not in regular course of
business) of grantor authorizing the execution and
delivery of present Deed.
b. Certificate of Authority from the Depart-
ment of State of the Commonwealth of Pennsylva-
nia authorizing transacting of business in Penn-
A-3
sylvania by Multicon Properties, Inc. (Ohio Corpo-
ration).
c. Production of Certificate from the State of
Incorporation showing that its charter is still in full
force and effect and that same has not been re-
voked for non-payment of corporate taxes of Multi-
con Properties, Inc. (Ohio Corporation).
d. Taxes due the Commonwealth of Pennsyl-
vania by Multicon Properties, Inc. (Ohio Cor-
poration) (SEARCH ORDERED).
e. Financing Statement Terminations, suit-
able for filing with the Secretary of the Common-
wealth, Prothonotary of Philadelphia County, the
Recorder of Deeds of Philadelphia County, ending
the Financing Statement of Provident National
Bank, secured party and Multicon Properties, Inc.,
debtor, filed 11/9/70 in the Department of Records,
#19852.
“4. MPI shall obtain the original drawings, speci-
fications, and plans for the Whitman Townhouse Proj-
ect from the architect, Trott and Bean of Columbus,
Ohio, and deliver them to RDA by March 17, 1978.
“5S. RDA shall prepare an advertisement for bids
and proposal package for potential bidders for the con-
struction of the Whitman Townhouse Project, based
upon the original drawings, specifications and plans by
April 3, 1978.
“6. HUD shall review and approve an acceptable
advertisement for bids and proposal package by April
10, 1978. If HUD finds the advertisement or proposal
package unacceptable, RDA and HUD shall negotiate
and reach an agreement by April 10, 1978.
“7. RDA shall cause the advertisement for bids to
be published at least twice each week for two consecu-
A-4
tive weeks in Philadelphia area newspapers and in na-
tional newspapers, including the New York Times and
Washington Post, such advertisements to be completed
by April 24, 1978.
“8. RDA, HUD and the City of Philadelphia shall
take affirmative action to seek and obtain minority
owned development companies to bid on this Project.
“9. Bids must be submitted to RDA no later than
2:00 p.m., June 9, 1978, at which time the bids will be
opened.
“10. The Technical Evaluation Committee (com-
posed of the Office of Housing and Community Devel-
opment, City Planning Commission, Philadelphia
Housing Development Corporation, Philadelphia In-
dustrial Development Corporation and RDA) shall re-
view all bids to determine which bidder demonstrates
the best financial capability and ability to perform
while also giving affirmative consideration to minority
bidders. The Technical Evaluation Committee may
consult with HUD, PHA, Whitman Area Improvement
Council, and counsel for plaintiffs in making this de-
termination. The determination of best bidder proposal
shall be made by June 26, 1978.
“11. HUD shall perform a preliminary cost esti-
mate for the construction of the Project based on the
original drawings, plans and specifications by June 26,
1978.
“12. HUD shall negotiate with the selected bidder
to determine the total price of construction together
with all terms, and such negotiations shall be com-
pleted by agreement on total price and terms by Sep-
tember 18, 1978. HUD shall amend the Annual Contri-
butions Contract with PHA to include the price
negotiated with the bidder by September 18, 1978.
A-5
“13. The Boards of RDA and PHA shall pass reso-
lutions approving the new redeveloper, the form of the
Redevelopment Contract and Agreement of Sale, sub-
ject to HUD approval, by September 25, 1978.
“14. RDA shall, by October 2, 1978, prepare and
present to City Council such documents as are neces-
sary for the purpose of obtaining Councilmanic ap-
proval of the new redeveloper and the redevelopment
contract.
“15. City Council shall expeditiously consider the
new redeveloper and the redevelopment contract, and
final action by Council in connection therewith shall be
taken no later than November 9, 1978.
‘16. In the event the Mayor is required to take ac-
tion in connection with Councilmanic approval of the
new redeveloper and the redevelopment contract, the
Mayor shall take such action by November 19, 1978.
“17. HUD shall give its approval to the new re-
developer and redevelopment contract, and PHA, RDA
and the new redeveloper shall execute the redevelop-
ment contract and Agreement of Sale, together with all
necessary documents, by November 23, 1978.
“18. The new redeveloper shall obtain: construc-
tion financing by February 13, 1979. Settlement shall
take place as soon as possible after the construction
financing is obtained but no later than February 25,
1979.
“19. The City of Philadelphia shall waive the
transfer tax on the transfer of the real property from
MPI to RDA. RDA shall, if same is imposed, pay real
estate transfer taxes to the Commonwealth of Penn-
sylvania.
“90. The City of Philadelphia shall provide such
police protection as is needed to insure the completion
of the 120 townhouses.
A-6
‘91. The new redeveloper shall begin construction
of the Whitman Townhouse Project as soon as practic-
able after settlement.
“99. The parties shall show compliance with each
of the steps set out herein by filing with the Court and
serving upon counsel for plaintiffs a copy of any and all
documents which are executed, entered, adopted, or
published in conformity with the steps set out, or where
no such documents are created, by filing and serving
such other proof of compliance with each step as may
be appropriate and sufficient to show compliance with
each step.”
The Court has determined to accept the agreement
of the parties (with all portioris objected to deleted) as a
specification of the necessary procedures and the
time-schedule required to complete construction of the
120 townhouses, pursuant to the Court’s Order of
November 5, 1976.
In connection with those deleted portions of the
agreement which concern real estate taxes, releases
and possible expenses in connection with the draw-
ings, specifications and plans, counsel for all parties
are directed to make another attempt to arrive at an
equitable solution to these few remaining problems,
and counsel for the plaintiffs shall advise the Court on
Monday, March 27, 1978 as to whether an agreement
has been reached.
/s/
RAYMOND J. BRODERICK, J.
A-7
IN THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
RESIDENT ADVISORY BOARD et al. Civil Action
Uv.
FRANK L. R1zzo et al. No. 71-1575
MEMORANDUM
Filed November 13, 1978
AND NOW, this 13th day of November, 1978, the
Court having been advised of the difficulties experi-
enced by the Philadelphia Housing Authority in meet-
ing the schedule previously established, the procedures
and schedules set forth in the Court’s memorandum of
March 17, 1978, as amended June 30, 1978, October
13, 1978, and November 3, 1978, shall be further
amended as follows:
I. Paragraph 13 shall be amended to provide:
The Boards of RDA and PHA shall pass resolu-
tions approving the new redeveloper, the form of
the Redevelopment Contract, amendment of sale
and the agreement of sale, subject to HUD ap-
proval by November 21, 1978.
A & R Development Corporation shall have
until November 21, 1978 to reveal the identity of
its general contractor.
il. Paragraph 14 shall be amended to provide:
RDA shall, by November 21, 1978, prepare and
present to City Council such documents as are
A-8
necessary for the purpose of obtaining Council-
manic approval of the new redeveloper and the Re-
development Contract.
III. Paragraph 15 shall be amended to provide:
City Council shall expeditiously consider the
new redeveloper and the Redevelopment Contract,
and final action by Council in connection
therewith shall be taken no later than December
29, 1978.
IV. Paragraph 16 shall be amended to provide:
In the event the Mayor is required to take ac-
tion in connection with Councilmanic approval of
the new redeveloper and the Redevelopment Con-
tract, the Mayor shall take such action by January
8, 1979.
V. Paragraph 17 shall be amended to provide:
HUD shall give its approval to the new re-
developer and Redevelopment Contract, and PHA,
RDA and the new redeveloper shall execute the re-
development contract and Agreement of Sale, to-
gether with all necessary documents, by January
15, 1979.
VI. Paragraph 18 shall be amended to provide:
Settlement shall take place no later than Feb-
ruary 16, 1979.
In no other respects, however, is the memorandum
of this Court dated March 17, 1978, and amended on
June 30, 1978, October 13, 1978 and November 3,
1978, modified.
/s/
RAYMOND J. BRODERICK, J.
A-9
RESOLUTION: DATED DECEMBER 21, 1978
Requesting the Redevelopment Authority of Philadel-
phia to prepare plans and select a redeveloper for
the development of not less than 250 dwelling units
on scattered sites within the Whitman Urban Re-
newal Area under certain terms and conditions.
WHEREAS, The Redevelopment Authority of
Philadelphia has submitted a proposed ordinance for a
redevelopment contract, specifying the construction of
one hundred and twenty (120) units of low income
housing at the cost of six million nine hundred and
three thousand, seven hundred and thirty-eight
($6,903,738) dollars, and naming as a redeveloper the
A and R Development Corporation/The Waterford
Group, a Joint Venture; and
WHEREAS, The proposed ordinance was intro-
duced into the Council on December 7, 1978, and after
proper advertising, a public hearing, on the proposal
was held on December 13, 1978; and
WHEREAS, At said public hearing lasting nine
hours, established the following testimony:
1. That the houses to be built as a ‘‘Modified
Turnkey III” Project would cost between $57,000 and
$61,000 dollars each, this without the original cost of
acquisition and demolition.
2. Expert testimony that the noise levels at the site
exceed those levels determined by the U.S. Environ-
mental Protection Agency to be hazardous to human
health. ,
3. That a survey to satisfy the requirements of the
National Environmental Policy Act (NEPA) was
started by the Department of Housing and Urban
Development and then cancelled before it was com-
pleted.
A-10
4. That no Turnkey III Project has been successful
in the entire United States and that the 120 units could
become a straight P.H.A. rental project, voiding the
planned purpose of home ownership.
5. As of now, there are neither valid plans or
workable financial proposals for a Modified Turnkey
III Project.
6. There was testimony that the proposed redevel-
oper’s qualifications and ability to fulfill the redevel-
opment contract were questionable.
7. That it was almost unanimous that rehabili-
tated units on scattered sites would better serve the
interests of all of the citizens of Philadelphia and in
particular the interests of low-income families and
minorities.
8. That housing units on scattered sites would cost
between fifteen and thirty thousand dollars each, al-
lowing for the production of many more housing units
and assist in renewing the Whitman area.
9. That many other neighborhoods throughout the
City were against the development of projects such as
proposed, but do favor a scattered site approach.
10. That applications, already taken by the
“Whitman Council,” for scattered site rehabilitated
housing in the Whitman area resulted in 140 appli-
cants, 70 for white families, 70 for minority families;
and
WHEREAS, As elected representatives of the
people of Philadelphia, the Council desires to do what it
thinks is right for those people, while cooperating with
the Federal Judiciary, for which it has the utmost re-
spect; and
WHEREAS, Council continues to encourage the
development of subsidized housing for non-elderly in
-
A-11
non-impacted areas and needs the cooperation of the
U.S. Department of Housing and Urban Development
to that end; and
WHEREAS, It is the express intent of City Council
that the City of Philadelphia, through its officers and
employees, shali administer all programs and ac-
tivities relating to housing and urban development in a
manner which affirmatively promotes fair and non-
discriminatory housing; therefore
RESOLVED, BY THE COUNCIL OF THE CITY
OF PHILADELPHIA, That the Redevelopment Au-
thority is hereby requested, when concurred in by the
Federal Court, to prepare an ordinance, complete with
plans, specifications, contract and any other necessary
documents, for the development of not less than two
hundred and fifty (250) units of housing for low-income
persons, on scattered sites, in the Whitman Urban Re-
newal Area.
RESOLVED, That upon receipt of such documents
together with approval and commitment for funding
from the Department of Housing and Urban Develop-
ment, the Council will consider and act upon same ex-
peditiously; and City Council will direct all administra-
tive agencies of the City having responsibilities to act
on such matters to do so forthwith so that the develop-
ment of housing units for low-income persons in the
Whitman Urban Renewal Area may proceed.
RESOLVED, That certified copies of this Resolu-
tion shall be forwarded to the Federal Court for the
Eastern District of Pennsylvania, the Mayor, the
Philadelphia Housing Authority, the Philadelphia Re-
development Authority, the Philadelphia Housing Au-
thority, the Philadelphia Planning Commission, the
Philadelphia Oftice of Housing and Community Devel-
opment, and the United States Department of Housing
and Urban Development.
A-12
IN THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
RESIDENT ADVISORY BOARD et al. Civil Action
: |
FRANK L. Rizzo et al. No. 71-1575
MEMORANDUM
BRODERICK, J. January 11, 1979
On December 21, 1978, the City Council of Phila-
delphia considered Bill No. 1706, entitled “An ordi-
nance approving the redevelopment contract of the
Redevelopment Authority of the City of Philadelphia
for the redevelopment and urban renewal of a portion
of Whitman Urban Renewal Area.. .”. Bill No. 1706
failed to receive sufficient affirmative votes. On the
same day, City Council passed a resolution “Request-
ing the Redevelopment Authority of Philadelphia to
prepare plans and select a redeveloper for the devel-
opment of not less than 250 dwelling units on scattered
sites within the Whitman Urban Renewal Area under
certain terms and conditions.” This Court has consid-
ered plaintiffs’ motion requesting, among other things,
that this Court order the defendants, Philadelphia
Housing Authority (PHA) and Philadelphia Redevel-
opment Authority (RDA), to execute by January 15,
1979 all necessary contracts and agreements with A &
R Development Corp./The Waterford Group, Inc. The
Department of Housing and Urban Development
A-13
(HUD) joined the plaintiffs in requesting such an Or-
der. The defendant, City of Philadelphia, has opposed
this motion and requests the Court to change the
judgment order of November 5, 1976 to provide for
scattered site housing instead of the townhouses. For
the reasons hereinafter set forth, this Court has deter-
mined that plaintiffs’ motion shall be granted and the
motion of the defendant, City of Philadelphia, shall be
denied. This means that the execution of the contract
with the selected redeveloper, and all other steps nec-
essary for the construction of the townhouses as
planned, shall proceed immediately.
A-14
HISTORY OF LITIGATION
The history of this litigation has been recited in
detail in prior opinions of this Court. A summary at this
juncture should be helpful, however, in clarifying the
issues, since a review of the transcript of the proceed-
ings before City Council indicates that the real issues
were somewhat clouded by the rhetoric of the hearing.
On November 5, 1976, this Court entered an order
directing the PHA, the RDA and HUD to proceed im-
mediately to construct the townhouses on the Whitman
site. The Third Circuit Court of Appeals affirmed the
order on August 31, 1977 and certiorari was denied by
the United States Supreme Court on February 27,
1978. Resident Advisory Board (RAB) v. Rizzo, 425 F.
Supp. 987 (E.D.Pa. 1976), aff'd in relevant part, 564
F.2d 126 (3d Cir. 1977), cert. denied, __ U.S. __, 98
S.Ct. 1457 (1978); Sworob v. Harris, 451 F. Supp. 96
(E.D.Pa. 1978), aff'd, 578 F.2d 1376, cert. denied, —
U.S. __ (January 8, 1979).
This litigation, which commenced in 1971, has
been protracted and vigorously contested. The trial
consumed 57 days, finally ending on January 21, 1976.
Planning for this low income housing development
commenced more than 20 years ago. The first of many
public hearings took place on June 4, 1956. At this
hearing, various sites were considered, and after hear-
ing the views of the community, the Whitman site at
Front and Oregon was selected and the site was ap-
proved by the Philadelphia City Planning Commission.
On February 18, 1957, HUD gave tentative ap-
proval to the Whitman site for the redevelopment of a
public housing project. An annual contributions con-
tract 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. Drawings
dor a high-rise public housing project at the Whitman
site were submitted to HUD by PHA and were ap-
A-15
proved by HUD on August 29, 1959. Condemnation
and acquisition of the site by PHA took place during
1959 and 1960, culminating with the award of demoli-
tion contracts on June 26, 1960. Local opposition
developed to the placing of high-rise public housing in
Whitman.
On October 27, 1963, RDA executed an application
to establish the Whitman Urban Renewal Area. 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 resi-
dents, demolition and site clearance, site preparation,
and rehabilitation or conservation required for the pro-
posed Whitman Urban Renewal Area. The plan in-
cluded clearing 130 homes, none of which were at the
Whitman public housing site, and rehabilitating 2,500
other structures. The land use map for the Whitman
Urban Renewal Area provided for public housing only
on the Whitman site. The total amount of all govern-
mental funds expended through RDA in the Whitman
Urban Renewal Area from 1963 through 1975 has been
$11,178,210.43; of this amount $6,682,686.92 has
constituted federal funds from HUD. 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. From Janu-
ary 1, 1966 until May 1, 1975, Whitman residents,
through RDA and with the aid of federal funds, have
obtained $2,718,278 in loans and grants to rehabilitate
their own homes. A total of 1,123 households, more
than 25% of all houses in the Whitman area, have re-
ceived funds from this program.
In 1964, after opposition had developed to the
high-rise design of the proposed Whitman project, a
special Act of Congress was passed, known as the Bar-
rett Amendment. Pursuant to the Barrett Amendment,
the design of the proposed Whitman project was
changed from high-rise to low-rise construction. The
A-15
zoning of the Whitman site was changed by City Coun-
cil in 1964 to permit the construction of low-rise public
housing on the site. In late 1967, Hartsville Construc-
tion Company was chosen as the developer to build 114
units on the Whitman site. The community opposed
certain aspects of the Hartsville plan and Hartsville
refused to execute the contract. Because of the opposi-
tion to the Hartsville plan, a decision was made to look
for a new developer.
A HUD Equal Opportunity staff review of the
Whitman site was conducted and approval of the site
for low income public housing was recommended on
June 4, 1968. The Whitman site was described as being
located in a predominantly all-white area,' conducive
in all respects to Equal Opportunity Housing. Thereaf-
ter, HUD approved the Whitman site. The next year
HUD established the Whitman project as a “balance”
for the Morton Addition, a project located in a black
area of Philadelphia. The Morton Addition was com-
pleted, and is now occupied, pursuant to the agreement
to build the Whitman townhouses.
During the latter part of 1969, PHA and RDA ad-
vertised for developers for the Whitman site pursuant
to all applicable regulations. Twelve developers re-
sponded, and on April 28, 1970, “HA chose Multicon as
the developer, which choice was approved by HUD on
May 20, 1970. 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.
The Whitman Park Townhouse Project was unique in
design for public housing because each house was de-
signed with street frontage and a separate entrance
and could be individually plotted on a separate building
1. Indeed, in 1950, 46% of the families living on the Whitman
site were black, making the area an integrated section of Philadel-
phia.
A-17
lot. This design was in anticipation of a federal pro-
gram 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.
On July 14,1970, RDA and Multicon entered into
an agreement of sale to enable Multicon to obtain the
land at Front and Oregon and build the Whitman Park
Townhouse Project. On October 27, 1970, Mayor Tate
signed an ordinance passed by City Council approving
Multicon as the developer of the project. On October
29, 1 970, based upon appropriate HUD approval of the
project, PHA and Multicon entered into an agreement
of sale whereby Multicon was to construct 120 town-
houses on the Whitman site. On October 30, 1970, RDA
conveyed title to the Whitman Park Townhouse Project
site to Multicon.
Prior to the signing of the contracts with Multicon,
the community was involved in numerous meetings
and correspondence with RDA, PHA and Multicon. On
June 2, 1970, a meeting was held in the Whitman
community attended by officials from RDA, PHA, Mul-
ticon and the Mayor’s office. The meeting was held to
give the community an opportunity to closely review
the Multicon plans for the Whitman Park Townhouse
Project. The community made several suggestions in
connection with the building materials to be used
in the project and fire safety for the completed
townhouses. The suggestions were accepted and appro-
priate changes were made in the Whitman Park Town-
house Project plans. Also, the home ownership poten-
tial and the advantages thereof of a public housing
development under Turnkey III were explained to the
community. Community representatives stated after
the June 2, 1970 meeting that the Whitman Park
Townhouse Project plans “look excellent”, that they
were “‘very impressed with the plans” and felt that the
houses would be “an asset to our community.”
A-18
Although a groundbreaking ceremony was con-
ducted on December 16, 1970, actual construction did
not commence until March of 1971. As a result of the
activities by demonstrators at the site, the builder was
unable to proceed with construction since requested
police protection was not forthcoming. At a conference
on April 30, 1971, the City Managing Director stated
that Multicon would not receive police assistance.
Shortly thereafter, there was a series of meetings
and various changes in the Whitman Park Townhouse
Project were proposed in order to settle the con-
troversy, including opening a building in the project as
a community recreation area, reserving 50% of the
units for persons who were displaced by the clearance
for the Whitman project, raising the income levels of
those persons who would be eligible for the project and
setting up a screening committee, which would in-
clude Whitman residents, to assure that those living in
the houses would be an asset to the community. On
May 17, 1971, after full discussion and consideration of
the settlement proposals, the community voted down
the final settlement offer of PHA. On May 18, 1971,
Mayor Rizzo was nominated as the candidate for
Mayor. On May 20, 1971, the Managing Director of
Philadelphia again stated that the City would not pro-
vide police assistance for Multicon should it return to
work, and the Chairman of PHA stated that he had
been instructed by the Mayor to order Multicon not to
resume work.
After he took office in January of 1972, Mayor
Rizzo told the Chairman of PHA that because of the
promise he had made to the people in the Whitman
area, he did not want the Whitman Park Townhouse
Project to proceed. The efforts of the builder to proceed
with construction were finally terminated by the City
paying the builder $806,000 to cancel the construction
contract.
Fa EE ad Se a ek ME Ds eet ne ee ee
A-19
In referring to this Court’s judgment order dated
November 5, 1976, our Third Circui ,
stated: ird Circuit Court of Appeals
. .. the court found that the City had violat
Civil Rights Act of 1866 (42 U.S.C. §§1981 page ove
and the Thirteenth and Fourteenth Amendments
because the actions of the City had a racially dis-
criminatory impact and were taken with a dis-
criminatory purpose or motivation. 425 F. Supp.
1024, 1025. We conclude, as did the district ores
that the City violated §1981 and §1982 by deprivin g
plaintiffs of constitutional rights guaranteed by the
Thirteenth and Fourteenth Amendments.
* * *
te The district court held that the City had acted
with racially discriminatory intent, as evidenced
by: (1) the City’s joining in opposition to the Whit-
man Townhouse project with knowledge that some
of that opposition was racially motivated; (2)
Mayor Rizzo’s explicit statements equating ‘public
housing” with “Black housing” and his public
stand “against placing such housing in White
neighborhoods”; and (3) the City’s taking steps to
ee sey the ~— with knowledge that the ac-
ion would produce a racially discrimina
O68 F.fue oes y discriminatory effect.
As for the actual consequences of the failure to
construct the Whitman Townhouse project, the
district court found the following effects of termi-
nation:
The cancellation of the Whitman Park
Townhouse Project had a racially dispropor-
tionate effect, adverse to Blacks and other
minorities in Philadelphia. The waiting list for
low-income public housing in Philadelphia is
composed primarily of racial minorities. Of the
ae ee ee
A-20
14,000 to 15,000 peuple 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 concen-
trated in the three major Black areas of Phila-
delphia, have the lowest median income in
comparison with the total population of Phila-
delphia 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 futherance
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 out-
side of Black residential areas of Philadelphia.
Cancellation of the project erased that oppor-
tunity and contributed to the maintenance of
segregated housing in Philadelphia.
425 F. Supp. at 1018. This discriminatory effect
and the invidious discriminatory purpose underly-
ing the City’s role in the project’s termination to-
gether were found to establish a constitutional vio-
lation under Washington v. Davis.
*K ok aK
To remedy Philadelphia’s violation of plain-
tiffs’ constitutional rights, the district court or-
dered that the City take “all necessary steps for the
construction of ” and enjoined the City from inter-
en =) re
A-21
fering with, the Whitman project. 425 F. Supp. at
1029. We recognize that once a violation is found,
“(t]he task is to correct, by balancing of the indi-
vidual and collective interests, the condition that
offends the Constitution.” Swann v. Charlotte-
Mecklenburg Board of Education, 402 U.S. 1, 16
(1971). Notwithstanding the Supreme Court’s ob-
servation in Swann that “the scope of a district
court’s equitable powers to remedy past wrongs is
broad”, id. at 15, the Supreme Court has in recent
equal protection cases given careful scrutiny to the
choice of remedy to assure that the relief granted is
no broader than that necessary to remove the viola-
tion and its effects. E.g., Dayton Board of Educa-
tionv. Brinkman, ____ U.S.____,__, 97 S.Ct. 2766,
53 L.Ed. 2d 851 (1977). See also Rizzov. Goode, 423
U.S. 362, 377 (1976). ‘‘Once a constitutional viola-
tion is found, a federal court is required to tailor
‘the scope of a remedy’ to fit ‘the nature of the vio-
lation,’ ”’ Brinkman, supra, U.S. at ___, 97 S.Ct.
[2766] at 2775. In short, the federal equitable rem-
edy must cure the constitutional defect but the
dosage must not exceed that necessary to effect the
cure.
Here, the injunctive relief decreed by the dis-
trict court is directly responsive to and seeks to
“cure” the violation proved, which arose with the
City’s resistance to, and obstruction of, the Whit-
man Townhouse project.
ok 1 *
In sum, therefore, it is apparent that by their
actions PHA and RDA were responsible for making
unavailable or denying housing, within the mean-
ing of §3604(a), to black families who otherwise
would be living in Whitman. This discriminatory
effect has not been justified under any standard,
and the record bears out the need for, and propriety
A-22
of, the relief granted by the district court with re-
spect to the Whitman project.
We need comment only briefly on the form of
the relief afforded by the district court in this
respect. The district court was modest and conserva-
tive in the manner in which it corrected the statu-
tory violation. Having no desire to become Phila-
delphia’s “housing czar’, see 425 F. Supp. at 1026,
the district court required only that the construc-
tion of the Whitman project proceed as planned
without futher interference. In so providing, the
district court did not venture outside the permissi-
ble boundaries of constitutional and statutory pre-
cepts.
564 F.2d at 140-50 (footnotes and citations omitted).
CITY COUNCIL CANNOT ABROGATE
THE COURT'S DECISION
The recent happenings in the City Council of
Philadelphia cannot interfere with the November 5,
1976 judgment of this Court, as affirmed by the Third
Circuit Court of Appeals, concerning which certiorari
was denied by the Supreme Court of the United States,
which judgment ordered the construction of town-
houses on the Whitman Park site. Should there come a
day when the Council of a city, by a majority vote of its
members, can overturn or obstruct a decision of the
federal judiciary holding that the rights of a minority in
the city were violated by the actions of city govern-
ment, it would mean that the elected body of a city
could effectively abrogate those inalienable rights
guaranteed to all of us in the Constitution. It would
mean that the judicial system of this nation, estab-
lished pursuant to Article III of the Constitution, a ju-
dicial system upon which this nation has come to rely in
times of crisis, would be without the power to enforce
its decrees and would crumble. Fortunately, ours is ana-
a ene ee ee eee
rt Senet ae
A-23
tion committed to the rule of law and our elected repre-
sentatives are not above the law. It must be so under
our Constitution, which guarantees rights to individu-
als, rights which cannot be destroyed by the democrat-
ically determined actions of the majority. It follows,
therefore, that, although federal judicial decisions do
frequently incur the wrath of the majority, under our
tripartite constitutional form of government, such de-
cisions are the law of the land and cannot be abrogated
by legislative action. It is beyond question that legisla-
tive action cannot negate a Constitutionally based ju-
dicial decision. As the Supreme Court in Miranda v.
Arizona, 384 U.S. 436, 490-91, 86 S.Ct. 1602, 1636
(1966), stated:
Judicial solutions to problems of constitutional di-
mension have evolved decade by decade. As courts
have been presented with the need to enforce con-
stitutional rights, they have found means of doing
so... Where rights secured by the Constitution are
involved, there can be no rule making or legislation
which would abrogate them.
And as more recently reiterated by the Supreme Court
in North Carolina State Board of Education v. Swann,
402 U.S. 43, 45, 91 S.Ct. 1284, 1286 (1971): ‘‘[S]tate
policy must give way when it operates to hinder vindi-
cation of federal constitutional guarantees.”
Ten days after the United States Supreme Court
denied certiorari in RAB v. Rizzo, this Court, in a
memorandum dated March 9, 1978, announced that
before proceeding further with a contempt hearing
against certain defendants, it would hold a meeting
with all counsel in the case in an effort to have the
parties agree concerning the procedures which each
defendant should take in order to accomplish construc-
tion of the townhouses at the earliest date. As a result
of this meeting, certain procedures were agreed to by
the parties, including the following which were incor-
A-24
porated in this Court’s memorandum of March 17,
1978:
10. The Technical Evaluation Committee
(composed of the Office of Housing and Commu-
nity Development, City Planning Commission,
Philadelphia Housing Development Corporation,
Philadelphia Industrial Development Corporation
and RDA) shall review all bids to determine which
bidder demonstrates the best financial capability
and ability to perform while also giving affirmative
consideration to minority bidders. The Technical
Evaluation Committee may consult with HUD,
PHA, Whitman Area Improvement Council, and
counsel for plaintiffs in making this determination.
The determination of best bidder proposal shall be
made by June 26, 1978.
13. The Boards of RDA and PHA shall pass
resolutions approving the new redeveloper, the
form of the Redevelopment Contract and Agree-
ment of Sale, subject to HUD approval, by Septem-
ber 25, 1978.
14. RDA shall, by October 2, 1978, prepare
and present to City Council such documents as are
necessary for the purpose of obtaining Council-
manic approval of the new redeveloper and the Re-
development Contract.
15. City Council shall expeditiously consider
the new redeveloper and the Redevelopment Con-
tract, and final action by Council in connection
therewith shall be taken no later than November 9,
1978.
16. In the event the Mayor is required to take
action in connection with Councilmanic approval
of the new redeveloper and the Redevelopment
Contract, the Mayor shall take such action by
November 19, 1978.
A-25
The Court, in its memorandum of March 17, 1978,
concluded as follows:
The Court has determined to accept the
agreement of the parties (with all portions objected
to deleted) as a specification of the necessary pro-
cedures and the time-schedule required to com-
plete construction of the 120 townhouses, pursuant
to the Court’s Order of November 5, 1976..,
Thus, the Court, desiring to enforce its injunctive
order without resort to contempt proceedings, accepted
the agreement made by the defendants, including the
City of Philadelphia, that City Council can be given the
opportunity to determine for itself that the contract
with the new redeveloper was in conformity with the
plan it had approved for the Whitman site on October
27, 1970. In the opinion of this Court, 35 P.S. §1710(¢j)
did not require the contract to be submitted to City
Council for its approval, since the Court’s Order of
November 5, 1976 specifically provided that the town-
houses were to be constructed in accordance with the
plans which had been approved by City Council on Oc-
tober 27, 1970. In any event, the law is clear that this
Court, for the purpose of remedying the Constitutional
violations, has the power to suspend the operation of
2. 35 P.S. §1710(j) provides:
The redevelopment proposal may contain the form of the
redevelopment contract with the redeveloper selected and upon
approval by the governing body of the proposal, as hereinbefore
provided, the Authority is authorized to execute the said re-
development contract. If the proposal does not contain the form
of the redevelopment contract with the redeveloper selected,
the Authority shall not execute a redevelopment contract with
a redeveloper thereafter selected, until the said redevelopment
contract shall have been approved by the governing body and
found to be in substantial conformity with the proposal thereto-
fore approved by the governing body. No additional public hear-
ing notice or publication shall be required with respect to such
approval.
A-26
such a statute. In a somewhat similar situation, the
United States District Court bypassed the Chicago City
Council, and the Seventh Circuit on appeal stated:
“The district court had undoubted power to suspend
the operation of the state statute.’’ Gautreaux v.
Chicago, 480 F.2d 210, 214 (7th Cir. 1973), cert. de-
nied, 414 U.S. 1144 (1974).
A review of the Notes of Testimony taken at the
public hearing before City Council reveals a climate of
confusion and misunderstanding. City Council did not
consider whether the contract with the new redevel-
oper was in conformity with the plan it had approved.
Instead, the desirability of building townhouses on the
Whitman site was considered. That decision was made
many years ago — not by this Court, but by federal,
state, and city authorities, with the approval of City
Council, pursuant to an Act of Congress specially spon-
sored by the late Congressman Barrett at the request of
his constituents from the Whitman area.
The Law Department of the City has filed with this
Court a copy of a resolution passed by Council concern-
ing the development of scattered site housing in the
Whitman Urban Renewal Area. The City has filed a
motion, pursuant to Fed.R.Civ.P. 60(b)(5) and (6), to
amend the Court’s judgment order of November 5,
1976 — an order affirmed by the Third Circuit Court of
Appeals concerning which certiorari has been denied
by the Supreme Court of the United States. A court
lacks the power to modify in any material respect its
judgment which has been affirmed, in relevant part,
by the Court of Appeals. Briggs v. Pennsylvania R.
Co., 334 U.S. 304, 68 S.Ct. 1039 (1948); Ratay v. Lin-
coln Nat’l Life Ins. Co., 405 F.2d 286 (3d Cir. 1968). A
court may, however, grant relief from such a judg-
ment, if the requirements of Rule 60 are satisfied; this
is a matter for the district court to determine. Standard
Oil Co. of California v. U.S., 427 U.S. 17, 97 S.Ct. 31
(1976). This Court finds that the City has failed to pre-
———eeEeEeE——e—eEeEeEeere
A-27
sent any reason sufficient to justify relief from the op-
eration of the judgment of this Court entered
November 5, 1976.
Furthermore, the policy decision as to whether to
build a high-rise or townhouses, or to rehabilitate old
houses, was not then, and is not now, a matter for judi-
cial determination by this Court. This issue was ad-
judicated in this Court’s opinion of November 5, 1976.
See RAB v. Rizzo, 425 F. Supp. at 1027. The doctrine of
res judicata is therefore another reason barring further
consideration by this Court of scattered site housing as
a substitute for the townhouses. Hubicki v. ACF In-
dustries, 484 F.2d 519, 524 (3d Cir. 1973). The ap-
proval of this Court is obviously not necessary should
the appropriate authorities desire to rehabilitate
houses in the Whitman area, it being understood, of
course, that such rehabilitation of houses in the Whit-
man Urban Renewal Area shall in no way interfere
with this Court’s order concerning the construction of
the 120 townhouses on the Whitman site.
The proposed contract with the new redeveloper
reveals that the cost of construction of the townhouses
will be substantially higher than the original contract
that was cancelled by the City. This Court understands
that many, including City Council, are concerned with
the increased cost of the townhouses, an increase
caused by inflation, and possibly by the fears or pres-
sures which may have inhibited local builders from
participating in the bidding. In addition to the in-
creased cost of the houses themselves, there is, of
course, the $806,000 paid by the City to the original
builder in cancellation of the original construction con-
tract. Although the question of who should finally bear
these increased costs brought about by discriminatory
acts in violation of the Constitution has not been pre-
sented to this Court, it is a matter which may deserve
the Court’s consideration at some future time.
A-28
There is no question that the federal court has the
power to enforce its decisions, and in matters such as
this where the judgment of the Court has mandated
that certain actions be taken by the parties, enforce-
ment of such orders is often brought about by holding
the recalcitrant party in contempt, which often means
a fine and/or imprisonment. So far, the Court has not
found it necessary to resort to contempt proceedings
and will do so only when it becomes necessary to the
enforcement of the judgment.
Accordingly, the townhouses shall be constructed
as ordered by this Court on November 5, 1976 and the
Court’s memorandum of March 17, 1978, amended
June 30, 1978, October 13, 1978, November 3, 1978,
and November 13, 1978, shall be further amended as
follows:
Paragraph 17 shall be amended to provide:
17. HUD shall give its approval to the new re-
developer, A & R Development Corp./The Water-
ford Group, Inc., and Redevelopment Contract,
and PHA, RDA and the A & R Development
Corp./The Waterford Group, Inc. shall execute the
Redevelopment Contract and Agreement of Sale,
together with all necessary documents on or before
January 19, 1979.
Paragraph 18 shall be amended to provide:
18. Settlement shall take place on or before
February 9, 1979.
Paragraphs 15 and 16 of this Court’s memorandum
will be considered as deleted for the reasons herein set
forth.
/S/
RAYMOND J. BRODERICK, J.
A-29
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
January 18, 1979
No. 79-1081
RESIDENT ADVISARY BOARD, et al.
v.
FRANK L. Rizzo, et al.
City Council of the City of Philadelphia
and all other Municipal Defendants,
Appellants,
(D.C. Civil No. 71-1575)
(See attached sheet for complete caption)
Present: WEIs and Manis, Circuit Judges.
1. Appellants’ motion to stay the January 11, 1979
order of the District Court for the Eastern Dis-
trict of Pennsylvania pending appeal, with
Memorandum of Law in support of motion, and
attachments,
2. Motion by appellee, Resident Advisory Board, to
expedite briefing and disposition on the merits,
in which it states joined by the United States
Department of Housing and Urban Develop-
ment, as follows:
(a) appellants’ brief to be hand filed and
served by January 22, 1979
(b) appellees’ brief(s) to be hand filed and
served by January 26, 1979
ae Lin
A-30
(c) appellants’ reply brief to be hand filed and
served by January 19, 1979
in the above-entitled case.
Respectfully,
/s/
THomMas F. Quinn, Esq., Clerk
enc.
kg
The foregoing Motion to stay the January 11, 1979
order of the District Court is granted. The parties are
directed to abide by the briefing schedule set forth
herewith:
1. Appellants to hand-file and hand-serve an orig-
inal and six (6) copies of brief in legible type-
written photostatic form, no later than January
26, 1979;
2. Appellants to hand-file and hand-serve an orig-
inal-and three (3) copies of the appendix in legi-
ble typewritten photostatic form no later than
January 26, 1979;
3. Appellees are to hand-file and hand-serve an
original and six (6) copies of their brief in legible
typewritten photostatic form, no later than Feb-
ruary 2, 1979;
4. Appellants may, if they so desire, hand-file and
hand-serve an original and six (6) copies of
reply brief no later than February 7, 1979; and
A-31
It is further ORDERED that this case be listed for
disposition on the merits duri
roayry uring the week of February
By the Court,
/s/
Circuit Judge
Dated: January 19, 1979
—
A-32
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 79-1082
WYLIE
RESIDENT ADVISORY BOARD by ROSE E,
Trustee ad litem, 1310 Arch Street, Philadelphia,
Pennsylvania, and
PHIA
HOUSING TASK FORCE OF THE PHILADEL
URBAN COALITION by SHIRLEY DENNIS and
JOSEPH MILLER, Trustees ad litem, 1512 Walnut
Street, Philadelphia, Pennsylvania, and
ESTHER SIERRA MENDEZ, individually and as
guardian ad litem for her children, Carmelo,
Mariel and Juanita, 1811 North 17th Street, Phila-
delphia, Pennsylvania, and
JEAN THOMAS, individually and as guardian ad litem
for her children, Cheryl, James, Kevin and Byris
Thomas, 3855 Mt. Vernon Street, Philadelphia,
Pennsylvania, and
MABLE SMITH, individually and as guardian ad litem
for her children, Jerome, Vanessa and Janice
Smith, 2429 North 27th Street, Philadelphia,
Pennsylvania, and 7
BERNICE DEVINE, individually and on behalf of her
children, Robert, Linda and Arthur Devine, Apt.
809-C, Warnock Place, Richard Allen Homes,
Philadelphia, Pennsylvania, on their own behalf
~
i Cit whale Talat i. witli, oA ut hae
el incl a
ee a ee ee
A-33
and on behalf of all persons on the Waiting list for
public housing in the City of Philadelphia,
VU.
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,
Municipal Services Building, Philadelphia, Penn-
sylvania, and ;
JAMES H. J. TATE, individually, and
FRED T. CORLETO, individually, and
MULTICON CONSTRUCTION CORP., 4642 Execu-
tive Drive, Columbus, Ohio, and
REDEVELOPMENT AUTHORITY OF THE CITY OF
PHILADELPHIA, City Hall Annex, Philadelphia,
Pennsylvania,
Defendants,
WHITMAN AREA IMPROVEMENT COUNCIL,
ALICE MOORE, FRED DRUDING, and ALL
MEMBERS OF WHITMAN AREA IMPROVE-
MENT COUNCIL AND ITS OFFICERS,
AGENTS, SERVANTS, REPRESENTATIVES and
EMPLOYEES, and ALL OTHER PERSONS ACT-
ING ON CONCERT WITH THEM OR OTHER-
WISE PARTICIPATING IN THEIR AID,
Defendant-Intervenors.
PHILADELPHIA HOUSING AUTHORITY, 2012
Chestnut Street, Philadelphia, Pennsylvania, and
A-34
REDEVELOPMENT AUTHORITY OF THE CITY OF
PHILADELPHIA, City Hall Annex, Philadelphia,
and
RUSSELL BYERS, individually and as Regional Ad-
ministrator of the U.S. DEPARTMENT OF HOUS-
ING AND URBAN DEVELOPMENT, Curtis
Building, Philadelphia, Pennsylvania, and
CARLA A. HILLS, individually and as Secretary of the
UNITED STATES DEPARTMENT OF HOUSING
AND URBAN DEVELOPMENT, Curtis Building,
Philadelphia, Pennsylvania, and
UNITED STATES DEPARTMENT OF HOUSING
AND URBAN DEVELOPMENT, Curtis Building,
Philadelphia, Pennsylvania,
Third Party Defendant,
CITY COUNCIL OF THE CITY OF PHILADELPHIA
and all other Municipal Defendants,
Appellants
Appeal From the United States District Court
For the Eastern District of Pennsylvania
D.C. Civil No. 71-1575
Argued February 22, 1979
Before HuNTER, WEIs, Circuit Judges, and MArRKEy,*
Customs and Patent Appeals Judge
* Honorable Howard T. Markey, Chief Judge of the United
States Court of Customs and Patent Appeals, sitting by designa-
tion.
ee ee ee ee
eS ne te ee i
7
A-35
JUDGMENT ORDER
It is ADJUDGED and ORDERED
hated that j -
ment of the district court be and is oe eee
Costs taxed against appellants.
By the Court,
JAMES HuNnTER, III, Circuit Judge
Attest:
THOMAS F. QuINN, Clerk
Date: March 7, 1979
A-36
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 79-1082
RESIDENT ADVISORY BOARD by ROSE WYLIE,
Trustee ad litem, et al.
Vv.
FRANK RIZZO, Individually and in his capacity as
Mayor of Philadelphia, et al.
SUR PETITION FOR REHEARING
Present: SEITZ, Chief Judge, ALDISERT, GIBBONS,
ROSENN, HUNTER, WEIS, GARTH and
HIGGINBOTHAM, Circuit Judges
The petition for rehearing filed by
Municipal Appellants
in the above entitled case having been submitted to the
judges who participated in the decision of this court
and to all other available circuit judges of the circuit in
regular active service, and no judge who concurred in
the decision having asked for rehearing, and a majority
of the circuit judges of the circuit in regular active ser-
vice not having voted for rehearing by the court in
banc, the petition for rehearing is denied.
By the Court,
JaMEs HunrtEeR, III, Judge
Dated: April 2, 1979
—"
Alt Ms bleeds nn ot
A-37
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 79-1082
RESIDENT ADVISORY BOARD, et al.
US.
FRANK L. RIZZO, et al.
City Council of the City of Philadelphia
and all other Municipal Defendants,
Appellants
Pursuant to Rule 41(b) of the Federal Rules of Ap-
pellate Procedure, it is ORDERED that issuance of the
certified judgment in lieu of formal mandate in the
mera cause be, and it is hereby stayed until May 9, .
JAMES HUNTER, III
Circuit Judge
Dated: April 9, 1979
A-38
THE PENNSYLVANIA URBAN
REDEVELOPMENT LAW
(35 Purdens’ Statutes § 1710(J))
35 P.S. § 1710. Preparation and adoption of redevelop-
ment proposal
(j) The redevelopment proposal may contain the
form of the redevelopment contract with the Redevel-
oper selected and upon approval by the governing
body of the proposal, as hereinbefore provided, the Au-
thority is authorized to execute the said redevelopment
contract. If the proposal does not contain the form of
the redevelopment contract with the redeveloper
selected, the Authority shall not execute a redevelop-
ment contract with a redeveloper thereafter selected,
until the said redevelopment contract shall have been
approved by the governing body and found to be in sub-
stantial conformity with the proposal theretofore ap-
proved by the governing body. No additional public
hearing notice or publication shall be required with re-
spect to such approval.
1945, May 24, P.L. 991 § 10. As amended 1955, May
31, P.L. 107 §§ 1-3; 1968, June, P.L. 263, No. 125, § 12.
Atel
A-39
DOCUMENTS CONCERNING IMPLEMENTATION
ORDERS OF DISTRICT COURT
Date
March 6, 1978
March 8, 1978
March 8, 1978
March 8, 1978
March 13, 1978
Document, Provision and Record
with Respect to City Council
‘Plaintiffs’ Proposed Implementation Or-
der’
No provision as to City Council.
R96-99
‘Defendant, RDA’s Proposed Implemen-
tation Order’
City Council mentioned in paragraph
#14 as follows:
“RDA shall prepare an Ordinance
for Introduction to City Council for the
purpose of having the new Redeveloper
and Redevelopment Contract approved
by October 30, 1978.”
— No provision as to time period for
City Council to consider or act upon
Redevelopment Contract or Redevel-
oper. R120-125
Letter from Municipal Defendants’ to
District Court containing Objections to
Plaintiffs’ Proposed Order and reasons
why City Council approval of Redevelop-
ment contract is necessary and man-
dated under State law. R126-129
Letter from Defendant, RDA stating
Objections to Plaintiffs’ Proposed Order
and stating that procedure for Develop-
ment of Project must include approval of
Redevelopment Contracts by City Coun-
cil. R108-111
‘Defendant RDA’s 2nd Implementation
Order’
Provides in Paragraph #15 for con-
sideration and vote by City Council on
Date
March 17, 1978
June 30, 1978
Sept. 15, 1978
Oct. 13, 1978
Oct. 26, 1978
A-40
Document, Provision and Record
with Respect to City Council
Proposed Redevelopment Contract and
Redeveloper. R138-145
‘Memorandum and Order of the District
Court dated March 17, 1978’ (Original
Implementation Order)
Paragraph #15 provides: “15. City
Council shall expeditiously consider
the new redeveloper and the redevelop-
ment contract, and final action by
Council in connection therewith shall
be taken no later than November 9,
1978.” R146-152
‘Memorandum and Order of the District
Court dated June 30, 1978’ (Amending
March 17, 1978 Order)
Contains same Paragraph #15 as
March 17, 1978 Order (See above)
R153-154
‘Defendant, HUD’s Proposed Amended
Implementation Order’
Proposed shortening the five (5) week
time period originally allotted to City
Council for consideration and final
action on Redevelopment Contract.
R155-158
‘Memorandum and Order of District
Court dated October 13, 1978’ (2nd
Amendment to March 17, 1978 Imple-
mentation Order)
Contains same Paragraph #15 as
March 17, 1978 Order except for
Modification of date for final action by
City Council from November 9, 1978
to December 18, 1978. R159-161
Letter from Plaintiffs requesting Modi-
fication of March 17, 1978 Implemen-
i nate CE eal i ATER A OA AEE aD AP NET ews 2 >
Date
Nov. 3, 1978
Nov. 13, 1978
Nov. 21, 1978
Dec. 13, 1978
Dec. 21, 1978
A-41
Document, Provision and Record
with Respect to City Council
tation Order, as Amended, to provide
that City Council must carry out its
obligation under Paragraph #15 of the
Court’s Order without, however, the
name of the proposed Redevelopers’
Contractor. R162-163
Memorandum and Order of District
Court dated November 3, 1978. (3rd
Amendment to March 17, 1978 Imple-
mentation Order)
Contains same Paragraph #15 as Oct.
13, 1978 Order — Court orders devel-
oper to reveal identity of its contractor
prior to City Council’s consideration of
Redevelopment Contract. R164-165
Memorandum and Order of District
Court dated November 13, 1978 (4th
Amendment to March 17, 1978 Imple-
mentation Order)
Contains same Paragraph #15 as Nov.
3, 1978 Order except for modifica-
tion of date for final action by City
Council from Dec. 18, 1978 to Dec. 29,
1978. R166-167
Redevelopment Contract Bill No. 1706,
submitted by RDA to City Council.
R168-251
Public Hearing by City Council Rules
Committee on Bill #1706.
Debate and vote by City Council Disap-
proving Bill No. 1706 containing the
Proposed Redevelopment Contract.
Vote: 11 to 5 to Disapprove the Rede-
velopment Contract and Redeveloper.
Date
Dec. 21, 1978
Dec. 21, 1978
Dec. 28, 1978
Dec. 28, 1978
* *
Jan. 11, 1979
Order subject
of this Appeal
A-42
Document, Provision and Record
with Respect to City Council
City Council passes Resolution of Dec.
21, 1978, providing framework for de-
velopment of 250 Scattered-Site Low
income Houses.
Resolution provides for development of
over twice as many houses as the
Townhouse Project would have in-
cluded. R252-254
‘Plaintiffs Motion to Suspend Operation
of 35 P.S. #1710...’ R255-266
“Municipal Defendants Memorandum of
Law in Opposition to Plaintiffs’ Motion
to Suspend 35 P.S. #1710...” R267-300
Municipal Defendants’ Motion for Modi-
fication of the Nov. 5, 1976 and March
17, 1978 Orders of the District Court,
as Amended. R301-314
‘Memorandum and Order of District
Court of Jan. 11, 1979,’ (5th Amend-
ment to March 17, 1978 Implementa-
tion Order)
Deleted Paragraph #15 and #16 from
Order — suspended operation of 35
P.S. #1710 and removed City Council
from its legislative role pursuant to
Pennsylvania State Law. R320-335
phe
eS
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CITY OF PHILADELPHIA
WHITMAN NOISE STUDY
Prepared for:
CITY OF PHILADELPHIA
LAW DEPARTMENT
201 CITY HALL
PHILADELPHIA, PA. 19107
Prepared by:
DAMES & MOORE
6 COMMERCE DRIVE
CRANFORD, N.J. 07016
December 8, 1978
December 8, 1978
City of Philadelphia
Law Department
201 City Hall
Philadelphia, Pa. 19107
Attention: Mr. M. Jurikson
Deputy City Solicitor
Gentlemen:
Re: Whitman Site
Dames & Moore is pleased to submit this report of
our findings regarding the applicability, from a com-
munity noise standpoint, of the Whitman Site (bounded
by Oregon, Front, Porter and the rear yards of homes
on 2nd Street) for the construction of residences.
Dames & Moore investigated the sound quality of the
referenced site both from an analytical basis using the
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federal Housing and Urban Development (HUD) Noise
Assessment Guidelines and from an environmental
sound level measurement program. The environmen-
tal sound level measurement program was conducted
under Dames & Moore’s direction.
SUMMARY
Portions of the Whitman site are unacceptable for
residential development. Use of HUD criteria (HUD
Circular 1390.2) indicates that much of the land
bounded by Oregon Avenue, Front Street, Shunk Street
and the rear yards of the homes on 2nd Street are in the
‘‘Normally Unacceptable” category. Sound level
measurements confirm this analysis.
The sound level data also indicate that environ-
mental sound levels (Lan) identified by the federal En-
vironmental Protection Agency (EPA) as requisite to
protect public health and welfare are exceeded
throughout the site. Portions of the site have present
sound levels (Leq21)) which exceed EPA’s identified
sound level requisite to prevent hearing damage risk.
Sound levels at the southern portion of the site exceed
EPA’s immediate community noise level goal of a re-
duction of community noise to below Lan = 75 dB. Other
portions of the site exceed EPA’s short term goal of a
reduction of community noise to below Len = 65 dB.
The southern portion of the site bounded by Ore-
gon, Front, Shunk, and the 2nd Street rear yards
should not be used for residential housing without
noise mitigation. Some alternatives to the proposed
plan are:
1. Construction of a continuous two-story com-
mercial/light industrial building along Oregon
Avenue and Front Street (to Shunk Street) to
act as a noise barrier for homes built on the re-
maining property.
2. Recreational/Parking for the southern section
and higher density residential for the northern
section.
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3. Extensive architectural redesign for all build-
ings exposed to unacceptable noise levels to en-
sure that interior building sound levels meet
HUD interior sound level criteria.*
INTRODUCTION
The U.S. Department of Housing and Urban
Development, in an effort to provide decent housing
and a suitable living environment, has published
guidelines for the assessment of noise as a major
source of environmental pollution. An evaluation of the
site’s potential for residential use is accomplished by
assessing the effect of three major sources of noise;
Aircraft, Roadways, and Railways. The evaluation of
these three noise sources results in a composite rating
of the site’s exposure to noise pollution. These ratings
are as follows:
Clearly Acceptable
The noise exposure is such that both the indoor |
and outdoor environments are pleasant.
Normally Acceptable
The noise exposure is great enough to be of
some concern but common building constructions
will make the indoor environment acceptable,
even for sleeping quarters, and the outdoor envi-
ronment will be reasonably pleasant for recreation
and play.
Normally Unacceptable
The noise exposure is significantly more severe
so that unusual and costly building constructions
are necessary to ensure some tranquility indoors,
and barriers must be erected between the site and
prominent noise sources to make the outdoor envi-
ronment tolerable.
*HUD Circular 1390.2.
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Clearly Unacceptable
The noise exposure at the site is so severe that
the construction costs to make the indoor environ-
ment acceptable would be prohibitive and the out-
door environment would still be intolerable.
Dames & Moore independently assessed the suita-
bility of the Whitman Site for residential development
using HUD guidelines [HUD Noise Assessment
Guidelines — T. Schultz and N. McMahon BBN Report
No. 2176 August 1971, and HUD Circular 1390.2].
Data were obtained from City of Philadelphia traffic
control staff, visits to the site, and an extensive noise
measurement program (discussed later in this report).
The following is a summary of the results of this as-
sessment.
Aircraft Noise
There are three airports within 15 miles of the pro-
posed site location:
Philadelphia International Airport — 5 miles
North Philadelphia Airport — 15 miles
Moorestown Field — 122 miles
Upon investigation of these airports, it was found
that Moorestown Field in Moorestown, N.J., has been
closed within the last year or two. No NEF (Noise Ex-
posure Forecast) contours have been developed for
North Philadelphia Airport.' However, air traffic con-
trol information for North Philadelphia indicates an
average number of operations at 600 flights per day.
Considering worst case, the airport still has a com-
posite rating of “Normally Acceptable.”
Philadelphia International Airport NEF contours
have not been provided as of this date. From site obser-
vations, it appears that aircraft overflights do not sig-
nificantly affect site noise. The assumed category is
“Normally Acceptable.”
1. Reference: Mr. Korzenouski, Engineer for Philadelphia In-
ternational Airport.
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Roadway Noise (Street Traffic)
There are five local streets and one main highway
that contribute to traffic noise at the Whitman Site (see
Figure 1). Calculations developed from traffic data in
Table 1 are presented in Table 1. The following com-
posite ratings are developed from the HUD Guidelines
for the site.
Boundary of Acceptability Category
Street Property Autos Trucks
Oregon Avenue North Norm. Unacc. Norm. Unacc.
Front Street East Norm. Unacec. Norm. Acc.
2nd Sireet West Norm. Acc. Norm. Acc.
Porter Street South Norm. Acc. Norm. Acc.
Shunk Street Cut Thru Norm. Acc. Norm. Acc.
The calculation details are shown in Figure 2 and
Figure 3.
Highway noise is emitted to the proposed site by
Interstate 95 which is elevated (37 ft.) and is about 475
ft. to the east of the proposed site’s eastern boundary.
Highway traffic data for design year 1990 was provided
by the City of Philadelphia, Department of Air Man-
agement Services, and is listed below:
Interstate 95 — Design Year 1990
Southbound Northbound
Average Daily Traffic (ADT) 29,900 37,900
Peak hour volume 9% 9%
Peak hour truck volume 7% 7%
Daily average truck volume 10% 10%
The HUD Noise Assessment Guidelines (graphs)
indicate that the site’s noise from 195 is “Normally Un-
acceptable” for both automobile and truck traffic. The
calculation details are shown in Figure 2 and 3.
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Railroad Noise
A north-south railroad line is located at a distance
of about 660 ft. east of the proposed site. Using worst
case analysis, this railroad line provides a HUD com-
posite acceptability rating of ‘Normally Acceptable.
AMBIENT SOUND MEASUREMENTS
An ambient sound level measurement program
was conducted from November 29, 1978 through De-
cember 6, 1978. Although rain interrupted the pro-
gram, measurements were made at six (6) locations on
the site as shown in Figure 1.
Two Metrosonics community sound level analyzers
were used to acquire the ambient sound level statistics.
One unit is owned by the City of Philadelphia and the
other by Dames & Moore. These Metrosonics units digi-
tally process the analog sound level signals to provide
the equivalent sound level, L-,, and the statistical
sound level distributions for the measurement period.
The data which were acquired are known as “Excee-
dance Levels.” The sound levels which were measured
are those levels exceeded one percent of the time to
those levels exceeded 99 percent of the time for the
measurement period. The nomenclature used is:
L. — This is the sound level exceeded X percent
of the time during the measurement peri-
od. For example, Lio is the sound level
exceeded 10 percent of the time during
the measurement period.
The Metrosonics unit also acquires the equivalent
sound level, Lea.
Leg — This is the equivalent steady sound level
which provides an equal amount of acous-
tic energy as the time-varying sound.
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The measurement program consisted of one-half
hour sample periods at each location until 24 hours of
representative sound level statistics were achieved.
The Metrosonics unit measures the ambient sound
and computes the ““Exceedance Levels.” Field person-
nel are required to ensure that the sound data are typi-
cal of the area. Intrusions such as children, excessive
wind (wind causes microphone noise), and other fac-
tors are not measured. Monitoring of the equipment
was accomplished by City of Philadelphia Division of
Air Management Services personnel under the direc-
tion of Dames & Moore’s experienced staff.
Simultaneous with two of the measurement
periods, Dames & Moore tape recorded ambient sound
for computer-controlled analysis. The resulting statis-
tical data agree very well with the data provided by the
Metrosonics units, see Table 3.
The original data are on file at Dames & Moore’s
Cranford, N.J. office. Analyzed data are provided in
this section.
Individual hourly sound level statistics were com-
bined to produce a 24-hour histogram and cumulative
distribution of environment sound. These data are
shown in Figure 4 through Figure 9. The cumulative
distribution data were plotted. These results are shown
in Figures 10 through 12. The sound level exceeded 8
hours of the 24 hours (Ls;;) is shown next to these
curves. This is the HUD criterion above which the land
use is Classified ‘Normally Unacceptable.”
Table 4 provides values of Leq for each of the 24
hours plus the 24-hour Equivalent Sound Level, Leq24)
and the Day-Night Sound Level, Lan.
RESULTS
The environmental sound level data described
above are used to map regions of “Acceptability” on
site drawings. Figure 13 provides zones of acceptabil-
ity determined in accordance with HUD criteria. Also
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included on this figure are the measured Ls; (8 hr/24
hr) values.
Figure 14 identifies zones on the property where
various EPA identified sound levels and goals are ex-
ceeded.
It is clear from these figures that the southern por-
tion of the property, bounded by Oregon Avenue, Front
Street, Shunk Street, and rear yards of the 2nd Street
homes should not be developed as a residential land
use without extensive noise mitigation. Some alterna-
tive noise mitigation approaches are discussed in the
following section. All residences constructed in the
northern or southern section of the site should be well
built with a large outdoor to indoor noise attenuation.
Units should be centrally air conditioned (winter and
summer) to minimize use of windows. With the win-
dows open, indoor sounds will be too high to be com-
fortable.
Noise sensitive rooms, i.e., bedrooms, living
rooms, dens, etc., should be placed away from the
street. Kitchens, laundry rooms, stairways, closets
should be placed between noise sensitive rooms and
the street to act as noise buffers.
MITIGATION ALTERNATIVES
a) Commercial/Light Industrial Barrier
A commercial/light industrial building constructed
along Oregon Avenue and Front Street (to Shunk
Street) of two stories height can provide shielding (bar-
rier) of the traffic noise generated along Oregon Av-
enue and Front Street. Hancock and Howard Streets
should not be constructed through, but should end at
the rear of the commercial/light industrial building.
Figure 15 illustrates this alternative.
The noise abatement can be considerable, result-
ing in a reclassification of the remaining land use as
“Normally Acceptable.”
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b) Recreational/Residential
The southern portion of the site can be reserved for
recreational activities. The recreation could not in-
volve activities where concentration or communica-
tion is required. Octave band sound pressure level
spectra measured at the site indicate that normal
speech/hearing will be difficult out-of-doors.
Quieter areas could be developed by the appropri-
ate placement of concrete walls and structures. Mask-
ing sounds, generated by a waterfall, together with
acoustic barriers, can be used to develop a more pleas-
ing park environment.
The northern section of the site is “Normally Ac-
ceptable” for the construction of residences. If a higher
density of residences is desired, perhaps a portion of
the southern section of the site can be used for parking.
c) Building Redesign
The townhouses should be constructed in a man-
ner which guarantees that interior sound levels in
sleeping quarters*
do not exceed an A-weighted sound level of 55 dB
for more than an accumulation of 60 minutes in
any 24-hour period, or
do not exceed an A-weighted sound level of 45 dB
for more than 30 minutes during the hours of 11
p.m. and 7 a.m., or
do not exceed an A-weighted sound level of 45 dB
for more than 8 hours in any 24-hour day.
*Based on HUD Circular 1390.2.
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If you have any questions regarding the findings
described above, or if you have any questions, please do
not hesitate to contact us.
Very truly yours,
DAMES & MOORE
Frederick M. Kessler, Ph.D.
Partner
FMK/ht
(NOTE: Tables and charts from report are omitted here but can
be found in the record at R737-767.)
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CONSTITUTIONAL PROVISIONS, STATUTES, AND
RULES OF CIVIL PROCEDURE INVOLVED
1. UNITED STATES CONSTITUTION
AMENDMENT X
The powers not delegated to the United States by
the Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people.
AMENDMENT XIV
Section 1. All persons born or naturalized in the
United States, and subject to the jurisdiction thereof,
are citizens of the United States and of the State
wherein they reside. No State shall make or enforce
any law which shall abridge the privileges or im-
munities of citizens of the United States; nor shall any
State deprive any person of life, liberty or property,
without due process of law; nor deny to any persen
within its jurisdiction the equal protection of the laws.
2. FEDERAL STATUTES
42 U.S.C. #1981:
“All persons within the jurisdiction of the
United States shall have the same rights in every
State and Territory to make and enforce contracts,
to sue, be parties, given evidence, and to the full
and equal benefit of all laws and proceedings for
the security of persons and property as is enjoyed
bv white citizens, and shall be subject to like
punishment, pains, penalties, taxes, licenses, and
exactions of every kind, and to no other.”
‘All citizens of the United States shall have the
same right, in every State and Territory, as is en-
joyed by white citizens thereof to inherit, purchase,
lease, sell, hold, and convey real and personal
property.”
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Federal Rules of Civil Procedure
Rule 39.
(b) By THE Court. Issues not demanded for trial by
jury as provided in Rule 38 shall be tried by the court;
but, notwithstanding the failure of a party to demand a
jury in an action in which such a demand might have
been made of right, the court in its discretion upon mo-
tion may order a trial by a jury of any or all issues.
Rule 52. Findings by the Court.
(a) Errect. In all actions tried upon the facts with-
out a jury or with an advisory jury, the court shall find
the facts specially and state separately its conclusions
of law thereon, and judgment shall be entered pur-
suant to Rule 58; and in granting or refusing inter-
locutory injunctions the court shall similarly set forth
the findings of fact and conclusions of law which con-
stitute the grounds of its action. Requests for findings
are not*necessary for purposes of review. Findings of
fact shall not be set aside unless clearly erroneous, and
due regard shall be given to the opportunity of the trial
court to judge of the credibility of the witnesses. The
findings of a master, to the extent that the court adopts
them, shall be considered as the findings of the court.
If an opinion or memorandum of decision is filed, it will
be sufficient if the findings of fact and conclusions of
law appear therein. Findings of fact and conclusions of
law are unnecessary on decisions of motions under
Rules 12 or 56 or any other motion except as provided
in Rule 41(b).
Rule 60. Relief From Judgment or Order.
(b) MIsTAKES; INADVERTENCE; EXCUSABLE NEGLECT;
NEWLY DISCOVERED EVIDENCE; FRAUD, ETc. On motion
and upon such terms as are just, the court may relieve
a party or his legal representative from a final judg-
ment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable ne-
glect; (2) newly discovered evidence which by due dili-
i
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gence could not have been discovered in time to move
for a new trial under Rule 59(b); (3) fraud (whether
heretofore denominated intrinsic or extrinsic), misrep-
resentation, or other misconduct of an adverse party;
(4) the judgment is void; (5) the judgment has been
satisfied, released, or discharged, or a prior judgment
upon which it is based has been reversed or otherwise
vacated, or it is no longer equitable that the judgment
should have prospective application; or (6) any other
reason justifying relief from the operation of the judg-
ment. The motion shall be made within a reasonable
time, and for reasons (1), (2), and (3) not more than one
year after the judgment, order, or proceeding was en-
tered or taken. A motion under this subdivision (b) does
not affect the finality of a judgment or suspend its op-
eration. This rule does not limit the power of a court to
entertain an independent action to relieve a party from
a judgment, order, or proceeding, or to grant relief to a
defendant not actually personally notified as provided
in Title 28, USC, § 1655, or to set aside a judgment for
fraud upon the court. Writs of coram nobis, coram
vobis, audita querela, and bills of review and bills in the
nature of a bill of review, are abolished, and the proce-
dure for obtaining any relief from a judgment shall be
by motion as prescribed in these rules or by an inde-
pendent action.
Rule 65. Injunctions.
(a) PRELIMINARY INJUNCTION.
(1) Notice. No preliminary injunction shall
be issued without notice to the adverse party.
(2) CONSOLIDATION OF HEARING WITH TRIAL ON
Merits. Before or after the commencement of the
hearing of an application for a preliminary injunction,
the court may order the trial of the action on the merits
to be advanced and consolidated with the hearing of
the application. Even when this consolidation is not
ordered, any evidence received upon an application for
a preliminary injunction which would be admissible
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upon the trial on the merits becomes part of the record
on the trial and need not be repeated upon the trial.
This subdivision (a)(2) shall be so construed and
applied as to save the parties any rights they may have
to trial by jury.
Rule 65.
(d) FORM AND SCOPE OF INJUNCTION OR RESTRAINING
OrpER. Every order granting an injunction and every
restraining order shall set forth the reasons for its is-
suance; shall be specific in terms; shall describe in
reasonable detail and not by reference to the com;laint
or other document, the act or acts sought to be re-
strained; and is binding only upon the parties to the
action, their officers, agents, servants, employees, and
attorneys, and upon those persons in active concert or
participation with them who receive actual notice of
the order by personal service or otherwise.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.