# Petition — City Council v. Resident Advisory Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2792%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 442 U.S. 947 ## Text 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 A-43 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 A-44 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. nshientascdaallll ee eee eae ES AO Ar cn or Miata acho hy aiken tt ere A-45 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 de [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2792%3A1. Public record. Not legal advice.