Kennedy Park Homes Ass'n v. City of Lackawanna, NY

• Citation: 436 F.2d 108
• Decision Date: 07 December 1970
• Docket Number: No. 359,Docket 35320.,359
• Parties: KENNEDY PARK HOMES ASSOCIATION, Inc.; Colored People's Civic and Political Organization, Inc.; James M. Thomas; Samuel Martin; the Diocese of Buffalo, New York, Plaintiffs-Appellees, United States of America, Plaintiff-Intervenor-Appellee, v. CITY OF LACKAWANNA, NEW YORK, Mark L. Balen, as Mayor, Michael T. DePasquale, Melvin D. Wodzinski, Frank Amrozowicz, Edward L. Piotrowski, and Thadeus Sroda, as constituting the City Council, Frank D. Cipriani, as Director of Development, Edward J. Kuwick, as Chief Engineer, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

436 F.2d 108 (1970)

KENNEDY PARK HOMES ASSOCIATION, Inc.; Colored People's Civic and Political Organization, Inc.; James M. Thomas; Samuel Martin; the Diocese of Buffalo, New York, Plaintiffs-Appellees, United States of America, Plaintiff-Intervenor-Appellee, v. CITY OF LACKAWANNA, NEW YORK, Mark L. Balen, as Mayor, Michael T. DePasquale, Melvin D. Wodzinski, Frank Amrozowicz, Edward L. Piotrowski, and Thadeus Sroda, as constituting the City Council, Frank D. Cipriani, as Director of Development, Edward J. Kuwick, as Chief Engineer, Defendants-Appellants.

No. 359, Docket 35320.

United States Court of Appeals, Second Circuit.

Argued October 14, 1970.

Decided December 7, 1970.

Certiorari Denied April 5, 1971.

Michael Davidson, New York City (Jack Greenberg, New York City, and Will Gibson, Buffalo, N. Y., on the brief), for appellees.

Charles S. Desmond, Buffalo, N. Y. (Kevin Kennedy, Buffalo, N. Y., on the brief), for appellee Diocese.

Alexander C. Ross, Atty., Dept. of Justice, Washington, D. C. (Frank E. Schwelb, Atty., Dept. of Justice, H. Kenneth Schroeder, Jr., U. S. Atty., W. D. N. Y., Jerris Leonard, Asst. Atty. Gen.), for plaintiff-intervenor-appellee.

Grace Marie Ange, Buffalo, N. Y. (Condon, Klocke, Ange & Gervase, Buffalo, N. Y., on the brief), for appellants.

Robert L. Carter, Richard F. Bellman and Sol Rabkin, New York City, for the National Committee Against Discrimination in Housing, Inc., and the National Urban Coalition, as amicus curiae.

Before CLARK, Associate Justice,^* LUMBARD, Chief Judge, and KAUFMAN, Circuit Judge.

Certiorari Denied April 5, 1971. See 91 S.Ct. 1256.

CLARK, Justice, Retired:

This is an appeal from a judgment of the United States District Court for the Western District of New York, Curtin, J., requiring the City of Lackawanna to take all necessary steps to allow Kennedy Park Subdivision to proceed with its construction plans for the development of a low income housing project on a certain tract of land, together with the supporting orders necessary thereto. The suit was commenced by the Kennedy Park Homes Association, the Colored People's Civic and Political Organization (C.P.C.P.O.), a membership corporation interested in housing, the Diocese of Buffalo, New York, and individual home seekers. The defendants included the City of Lackawanna, its City Council and Mayor as well as other city officials. The United States of America was permitted to intervene. The complaint alleged that the defendants had deliberately rezoned the property that the plaintiffs had selected for its housing project as a park and recreation area, and had declared a moratorium on new subdivisions, in order to deny decent housing to low-income and minority families, in violation of the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the Federal Constitution, the Civil Rights Act (42 U.S.C. § 1983) and the Fair Housing Act of 1968 (42 U.S.C. § 3601 et seq.). After an extended trial the Court entered its decision and order on August 13, 1970, 318 F. Supp. 669. Thereafter this court on September 3, 1970, granted a stay of the order conditioned on accelerated briefing and argument. We affirm the judgment and refer appellant Lackawanna's application for modification to the trial judge for such action as is warranted under the premises.

At the outset we point out that the comprehensive and well-documented decision and order of the learned trial judge has been most helpful to us in our consideration of the case. While the defendants-appellants attack the findings as being based on inference and implication, we find after careful study that they are fully supported by the record and lead inescapably to the conclusion that racial motivation resulting in invidious discrimination guided the actions of the City. The pattern is an old one and exists in many of our communities but appears to be somewhat more subtle in Lackawanna. However, when the chronology of events is considered, the discrimination is clear.

I.

First, we have a three-ward city with 98.9 percent of all of its nonwhite citizens living in the First Ward. The Second Ward, with a population of 8,974, has only one nonwhite person, while only 29 nonwhites reside in the Third Ward. The Bethlehem Steel Company's plant, with its more than 20,000 employees, occupies at least half of the land area of the First Ward. This Ward also has the oldest, most dilapidated dwelling houses, and the highest residential density with the greatest percentage of persons per unit in the city. Health-wise it is classified as a "high risk area," having double the incidence of tuberculosis and the highest infant mortality rate of the entire city. Its juvenile crime rate is three times the city average, and its adult crime rate is double the average. The air pollution from the steel plant is at times unbearable because of the huge clouds of smoke, the dust and particles spewing from its furnaces and the open hearths that burn constantly. To add insult to injury, a series of parallel railroad tracks serves the steel mill, running along the east boundary of the First Ward and physically separating it from the rest of the City. Indeed the only traffic connection between the two is a single bridge that spans the railroad tracks at Ridge Road. This man made and City approved physical barrier actually segregates the black community of Lackawanna, located in the First Ward, from the rest of the City. The tracks are often tagged as the barrier "between the `haves' and the `have nots.'"

Second, the nonwhite residents of Lackawanna make up one-tenth of its population and 35.4 percent of the First Ward. The Planning and Development Board of Lackawanna has seven members, all of whom are white and none of whom reside in the First Ward. Each Ward has one councilman and two are elected at large but the First Ward has only one member of the Council. There are three low income housing projects in the City of Lackawanna. All of them are in the First Ward. The best housing in the First Ward, the Bethlehem Park project built by the Steel Company, was restricted to whites until recently.

Third, although many of the blacks residing in the First Ward wish to move out of it, building contractors generally will not build a house for a black citizen in the Third Ward. As the Planning Consultant to the City expressed it to the Planning and Development Board as late as February 1968:

"The Negro has indicated tremendous concern about his suspected confinement to the first ward. At almost every one of the Planning Board meetings, collectively they have stated they do not feel that any residential use should be allowed to remain in the first ward. In piercing through what they say, what they really mean is don\'t keep us in the first ward, let us live where our income or our desires allow us. You have a tremendous pressure building up in your community on the part of the non-whites to go across the bridge."

In fact, only the month before representatives of the C.P.C.P.O. had called on the Director of Development of the City to inquire about the availability of city-owned land for subdivision development. Subsequently one of the plaintiffs in this case offered to buy 74 contiguous lots in the Second Ward for a housing development but his offer was tabled by the City Council. Although a group of ministers urged the Mayor to permit the sale, he told them informally that any sale of city property might have to be by public bid but that he would look into it. He never replied to their inquiry. Neither the Mayor nor the Director of Development made further reply.

In March 1968 arrangements were made with the Diocese of Buffalo by plaintiff C.P.C.P.O. to purchase 30 acres of the Diocese land in the Third Ward to be used for a proposed Kennedy Park Subdivision, a low income housing project. The site was located south of Martin Road and east of the proposed route of the "McKinley Extension" highway. C.P.C.P.O. incorporated the Kennedy Park Homes Association as a housing or mortgagor company. This news was reported in the Buffalo and Lackawanna press. Petitions were circulated opposing the sale. One petition with 3,000 signatures was sent to Bishop McNulty of the Diocese opposing the sale for lack of sewer facilities and schools. It carried the name of both Mayor Balen and the President of the City Council. A meeting in the Third Ward also opposed the sale, and a group known as TICA (Taxpayers Interested in Civic Affairs) was a leader in opposition. In April 1968, at a meeting of the TICA group, concern was voiced over both the sewage problem and the schools as well as the damage that might result to property values if low income housing was constructed in the Third Ward. In addition some fears of increased unrest and misunderstanding were expressed if "a grand scale integration" rather than "the gradual way" resulted. At a later First Ward group meeting a report was made of this earlier meeting in the Third Ward. A spokesman for the First Ward group made reference to "rumored threats of violent action" if moves from the First to the Third Ward were made and indicated the Justice Department and Attorney General's Office had been alerted. A joint meeting was suggested but was never held. Both of these meetings in the Third and First Wards, respectively, were held under the auspices of the Commissioner of the New York State Human Rights Division and the Chairman of the Lackawanna Human Rights Commission.

Although plans were being studied for housing and sewerage improvements beginning in 1967, none had been adopted. On August 20, 1968, the Lackawanna Zoning Board of Appeals and the Planning and Development Board met in joint session and recommended to the City Council a moratorium on all new subdivisions until such time as the sewer problem was solved. It also recommended that parts of the Second and Third Wards be designated for open space and park area. This area included...