Cox v. City of Dallas, Tex.

Decision Date09 November 2005
Docket NumberNo. 04-11304.,04-11304.
Citation430 F.3d 734
PartiesHarold COX; Shirley Davidson; Robert Stubblefield; Cynthia Herring; Eloise Edwards; Betty Curley; Leo Easter, Plaintiffs-Appellants, v. CITY OF DALLAS, TEXAS; et al., Defendants, City of Dallas, Texas, Defendant-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Michael M. Daniel (argued), Laura Beth Beshara, Dallas, TX, for Plaintiffs-Appellants.

Caroline Jordan (argued), Janice Smith Moss, Asst. City Atty., Dallas, TX, for Defendant-Appellee.

Reed N. Colfax, Relman & Associates, Denise L. Gilman, Washington Lawyers' Comm. for Civ. Rights, Washington, DC, for Bazelon Ctr. for Mental Health Law, Fair Housing Action Ctr., Lawyers' Comm. for Civ. Rights Under Law, NAACP, Nat. Fair Housing Alliance and N.Y. Lawyers for the Pub. Interest, Amici Curiae.

Appeal from the United States District Court for the Northern District of Texas.

Before HIGGINBOTHAM, JONES and DeMOSS, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Asserting racial discrimination, homeowners sued the City of Dallas under the Fair Housing Act and 42 U.S.C. §§ 1981 and 1983 for persistent failure to police the operation of an illegal dump near their homes. The district court granted summary judgment to the City on the Fair Housing Act claim and ruled for the City on the §§ 1981 and 1983 claims after a bench trial. We affirm.

I

The City annexed the Deepwood neighborhood in 1956 and zoned it residential. In 1963, the City issued a certificate of occupancy for a gravel pit, part of a sand and gravel mining operation, at 523 Deepwood Street. The pit required a certificate because it was a non-conforming use. The City also re-zoned as industrial a portion of the 85-acre site and issued a specific use permit for a mining operation.

Plaintiffs purchased homes in Deepwood between 1970 and 1978. It was a predominately white neighborhood according to the 1970 U.S. Census. By the 1980 Census, it was predominately black. During the early years of this decade of racial transition, there was open dumping of solid waste at the site, prompting visits to the site by City and state officials. Their response was a call for continuing surveillance.

Terry Van Sickle owned V.V. Construction. He also owned the site from 1982 through 1992. In March of 1982, V.V. Construction applied for a permit to remove sand and gravel from the site, assuring the City that it would fill the old pits with solid waste. The permit was issued the following month.

Within six months, one of the plaintiffs in this action filed a complaint with the City, alleging massive illegal dumping at the site. The City responded that Van Sickle had been cited for improperly conducting a sanitary landfill operation in a residentially zoned area. Weekly re-inspections followed but, as late as December 9, 1982, had detected no additional illegal dumping. Plaintiffs had a different take. They continued to complain at City Council meetings about dumping. In the first four months of 1983, residents appeared five times at City Council meetings, each time expressing concern about the site; in particular, they voiced concerns about truck traffic, noise, air pollution, and illegal dumping.

On February 4, 1983, responding to these complaints, the Assistant City Manager advised the mayor and the City Council that Van Sickle had been fined for operating a sanitary landfill on the site and that illegal dumping had ceased. The manager offered the view that once truck traffic to the site was diverted away from residential streets, most of the residents' concerns would be resolved. That did not prove to be accurate. Complaints by residents of Deepwood continued, as did the efforts of staff to reassure the elected officials. On May 18, 1983, a City employee sent a memo to a City Councilwoman describing the site and indicating that no contaminants were found in the soil or water table and that continued monitoring was to take place every four to six months for five years. Again, despite these assurances, residents continued to complain that trash was being dumped at the site.

The City Council remained attentive, if ineffectual, requesting that the Board of Adjustment hold a public hearing to consider terminating the nonconforming use of the site. The resolution requesting the hearing pointed to the operation of a "stone, sand, or gravel mining use" on the property. It did not mention the complaints that it was being used as an illegal dump.

The Board of Adjustment held the requested hearing on July 26, 1983 to consider revoking the certificate of occupancy for the nonconforming sand and gravel mining operation. The board members visited the site on the morning of the hearing. In preparation for the inspection, however, Van Sickle had moved the trash and covered it with dirt. At the hearing, he testified that he had removed a considerable amount of trash from the site and that he planned to mine gravel for two more years and fill the resulting hole for another three years. Two other individuals supported continuing the nonconforming use. While two residents sent letters of opposition to this plan to the Board of Adjustment, none attended the hearing. At the conclusion of the hearing, the board decided to take no action to revoke the certificate and to call another hearing in nine months. There is no evidence in the record that the board ever again considered the matter.

While Van Sickle owned the site, two City demolition contractors dumped trash on the site. Illegal dumping continued from 1985 to 1993, and during this time the City invested little effort into deterring illegal dumping.1 Over these eight years, the City issued fifteen citations for illegal dumping, six of which were for dumping at the Deepwood site. A 1985 memo to the mayor and City Council stated that the citations for illegal dumping at the site had been only a partial deterrent and noted that control of illegal dumping had been "loose."

In 1987, the City sued Van Sickle, V.V. Construction, and another defendant, Samson Horrice, for operating an illegal solid waste facility. As if to make matters plain, in 1988 the site caught fire and burned for over seven months. Finally, in December of 1989, the City obtained a judgment against the defendants ordering them to cease dumping at the site and to submit and implement a plan to close the site. But nothing changed.

The Bureau of Solid Waste Management of the Texas Department of Health inspected the site in April of 1991. The inspectors reported continued unauthorized dumping and no efforts to clean up the site as required by the 1989 judgment. According to the reports, the City was informed of the failure to clean up the site.

In November of 1991, the City moved for contempt against Van Sickle and Horrice for failure to comply with the judgment. No hearing was held because the City failed to serve one of the defendants. It appears that no further action was taken to enforce the judgment and ensure closure of the site. With this inaction, a decade of erratic enforcement staggered to a halt.

First State Bank had a lien on the site. In 1991, the Department of Housing and Neighborhood Services informed the bank that the site had been inspected and was in compliance with the City code. In 1992, First State Bank acquired the site when Van Sickle defaulted on a loan, and two years later it sold the site to Herman Nethery.

On August 1, 1994, Nethery, the new owner, applied for a construction permit from the City on behalf of Herman Nethery Recycling. Nethery described the proposed project as "fill & mine property." A section of the application set aside for "office use only" contains a notation that the application was not ready because it needed an accompanying affidavit stating that the proposed use had been in continuous operation since the original certificate of occupancy was issued. An affidavit was submitted to the City on August 2, 1994, stating, "VV Construction Company is in fact in business and continuing business on said property since 1982 to present time." The affiant was V.V. Construction Co. by Herman Nethery Recycling. The same day, the City issued a permit to Nethery for mining at the site. The accompanying contractor's authorization form notes that the City had to inspect the property before Nethery could receive a certificate of occupancy.

Meanwhile, the City created an Illegal Dumping Team of six code enforcement inspectors to prevent illegal dumping at Deepwood and other sites. The inspectors issued numerous citations to people operating the site beginning on August 22, 1994. Despite the reports and citations, the City issued a certificate of occupancy to Nethery on December 5, 1994, apparently without first conducting the required inspection. The certificate allowed the operator of the site to "dump rock, gravel, sand, clean dirt free of vegetation and concrete, generated from Demolition efforts associated with the Urban Rehabilitation Standards Board Demolition Program." The City continued to issue citations for illegal dumping through November of 1996.

During the time that Nethery owned it, the site was operated by Herman Lee Gibbons. Gibbons was also a subcontractor on certain City contracts for demolition and hauling debris, and he dumped waste at the site. Other subcontractors on City demolition projects did the same. Gibbons and other site operators used copies of the certificate of occupancy issued by the City to prove to their customers that the site was a legal landfill.

Kenn Hornbeck, the City employee who supervised City demolition contracts, did not seek to terminate those subcontracts assertedly because he had been provided no proof that material from City demolition projects was being dumped illegally. Yet Hornbeck knew that Gibbons was operating an illegal dump at the site, and he continued to forward contracts with Gibbons to the City Council for approval without informing them...

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