508 F.2d 1179 (8th Cir. 1974), 74-1345, United States v. City of Black Jack, Missouri

Docket Nº:74-1345 and 74-1378.
Citation:508 F.2d 1179
Party Name:UNITED STATES of America, Appellant-Appellee, v. CITY OF BLACK JACK, MISSOURI, Appellee-Appellant.
Case Date:December 27, 1974
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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508 F.2d 1179 (8th Cir. 1974)

UNITED STATES of America, Appellant-Appellee,



Nos. 74-1345 and 74-1378.

United States Court of Appeals, Eighth Circuit

December 27, 1974

Submitted Oct. 15, 1974.

Rehearing and Rehearings En Banc

Denied Jan. 20, 1975.

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[Copyrighted Material Omitted]

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Frank E. Schwelb, Atty., Dept. of Justice, Washington, D.C., for appellant-appellee.

Roy W. Bergmann, Clayton, Mo., and Sheldon K. Stock, Clayton, Mo., for appellee-appellant.

Before HEANEY, BRIGHT and ROSS, Circuit Judges.

HEANEY, Circuit Judge.

This action was brought by the United States against the City of Black Jack, Missouri, under Title VIII (Fair Housing) of the Civil Rights Act of 1968. 42 U.S.C. 3601 et seq. The complaint alleged that the City had denied persons housing on the basis of race, in violation of 3604(a), and had interfered with the exercise of the right to equal housing opportunity, in violation of 3617, by adopting a zoning ordinance which prohibited the construction of any new multiple-family dwellings. In particular, it alleged that the ordinance operated to

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preclude construction of a low to moderate income integrated townhouse development known as Park View Heights. 1

The District Court recognized that,

* * * where a municipality exercises its zoning powers in a racially discriminatory manner and thereby excludes housing which provides rental opportunities for significant numbers of non-white persons, such conduct constitutes a violation of 42 U.S.C. 3604(a). * * *

United States v. City of Black Jack, Missouri, 372 F.Supp. 319, 327 (E.D.Mo.1974).

However, it held that the United States had failed to prove that there was any racially discriminatory effect or that the City had operated with racially discriminatory motives, and that, therefore,

* * * this Court's review of the validity of the zoning ordinance is limited to whether the ordinance is arbitrary, unreasonable or without a rational basis * * *.

Id. at 328.

Finding that the ordinance had none of those qualities, the court held that there was no violation of Title VIII and denied relief. We reverse.

The factual background of the litigation is set forth in the District Court's reported opinion. We repeat here those facts relevant to this appeal. In 1970, the Black Jack area was unincorporated and was governed locally by St. Louis County. The county had adopted a master plan in 1965 which embraced the 1,700 acres which were later to become the City of Black Jack. That plan designated sixty-seven acres for multiple-family construction. In 1970, 15.2 of those acres were occupied by 321 apartments, 483.1 acres were occupied by single-family dwellings, and the rest of the land was undeveloped.

In 1969, the Inter Religious Center for Urban Affairs (ICUA) began planning Park View Heights to create alternative housing opportunities for persons of low and moderate income living in the ghetto areas of St. Louis. After a search for an appropriate site, ICUA settled on 11.9 acres on Old Jamestown Road, then in an unincorporated area, but now within the City of Black Jack. The site was designated for multiple-family structures. An option was obtained on the land, and in March, 1970, the sponsors filed a preliminary application with the Federal Housing Administration for initial approval of a proposed 236 development. The original plans envisioned 108 units comprised of two-story townhouses. Within a month, the proposal became a matter of public knowledge, and public opposition was swift and active.

On June 5, 1970, HUD issued a 'feasibility letter,' which amounted to a green light for federal funding, and which was accompanied by a reservation of federal funds for the development. As stated in Park View Heights Corp. v. City of Black Jack, 467 F.2d 1208, 1211 (8th Cir.1972):

Upon learning of the 'feasibility letter,' area residents began a drive to incorporate the area including the site of the proposed Park View Heights apartments. On June 26, 1970, the Citizens for the Incorporation of Black Jack presented two petitions requesting incorporation with 1,425 signatures to the St. Louis County Council. Between June 26, 1970 and August 6, 1970, the St. Louis County Department of Planning reported to the St. Louis County Council that they 'strongly opposed the act of incorporation on fiscal, planning, and legal grounds.' Despite this opposition, the St. Louis County Council incorporated the City of Black Jack, Missouri, on August 6, 1970.

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Between the date of the municipal incorporation and September 15, 1970, the municipal authority of the City of Black Jack was suspended by a Writ of Prohibition issued by a state court. Within six days after the writ was dissolved, the city Zoning Commission issued notices of hearings on a zoning ordinance * * *.

The ordinance was enacted by the City Council on October 20, 1970. It prohibited the construction of any new multiple-family dwellings and made present ones nonconforming uses.

The racial composition of Black Jack and the surrounding area was set forth by the District Court in its opinion, and is not contested by the parties:

Statistical information submitted shows that at the relevant time the area which is now the City of Black Jack was virtually all white, with a black population of between 1% And 2%. The area of St. Louis County north of Interstate Highway 270, which includes Black Jack, is approximately 99% White. * * *

The virtually all-white character of Black Jack was in marked contrast to the racial composition of other parts of the St. Louis area. In 1970, the pupil population of the City of St. Louis School District was 65.6% Black. * * * In 1970, the Kinloch School District, which is only two miles from the nearest boundary of the Hazelwood School District (of which Black Jack is a part), had 1,245 students, all of whom were black.

The percentage of blacks in St. Louis County has increased only slightly overall from 4.1% In 1950 to 4.8% In 1970. During the same period, the percentage of blacks in the City of St. Louis more than doubled from 17.9% To 40.9%.

Between 1950 and 1970, the population of the city declined * * * (by) 27%, while the population of the county more than doubled * * *. From 1960 to 1970, there were approximately 102,298 new housing starts in the county, and 15,348 in the city, a ratio of almost 7 to 1. During the same period, the city had a net decrease of 24,548 housing units, while the county had a net increase of 84,169. * * *

The concentration of blacks in the city and in pockets in the county is accompanied by the confinement of a disproportionate number of them in overcrowded or substandard accommodations. The 1970 census reveals that in St. Louis city and county approximately 40% Of the black families, as compared with 14% Of the white families, lived in overcrowded units. * * *

United States v. City of Black Jack, Missouri, supra 372 F.Supp. at 325.

The District Court further found that the average cost of a home in the City of Black Jack in 1970 was approximately $30,000, and that the average income of Black Jack families is approximately $15,000 per year. It found that Park View Heights was designed to meet the housing needs of familes making between $5,528 and $10,143 per year.

Two peripheral issues raised by the City on appeal may be summarily disposed of. First, Black Jack asserts that a municipality may not be sued under Title VIII because it is not a 'person' within the meaning of 3602 and 3613. It ruges that the analogous cases of City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973), and Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), which dealt with 1983, are controlling. The District Court properly rejected this claim. Both Monroe and Kenosha emphasized explicit legislative history peculiar to 1983. Title VIII, on the other hand, was passed almost one hundred years after the initial enactment of 1983, and there is no similar legislative history. To hold that local government is immune from the proscriptions of Title VIII

* * * turns the old 'state action' controversy on its head. * * * It is simply too late in the day now to say that judicial control is impossible for

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the very reason that the state is involved. Whatever one thinks of state action as a viable limiting principle on the constitutional command of equality, it should at least be clear that the most outrageous deprivations of equal rights are those perpetrated by the state itself. * * * We are unwilling to believe that the legislators who voted for (Title VIII) intended to exempt the most serious offenses from its coverage.

Mayers v. Ridley, 151 U.S.App.D.C. 45, 465 F.2d 630, 635 (1972) (en banc) (J. Skelly Wright, J., concurring). See also Citizens Committee for Faraday Wood v. Lindsay, 362 F.Supp. 651, 653 (S.D.N.Y.1973).

Second, Black Jack asserts that the District Court erroneously refused to abstain, and that the matter was one properly left to the state courts. However,

* * * Congress (has) imposed the duty upon all levels of the federal judiciary to give due respect to a suitor's choice of a federal forum for the hearing and decision of his federal constitutional claims. * * *

Zwickler v. Koota, 389 U.S. 241, 248, 88 S.Ct. 391, 395, 19 L.Ed.2d 444 (1967).

Although this action was brought under a federal statute rather than under the Constitution, the statute was enacted as an aid to enforcement of the Thirteenth Amendment. We see no sound reason upon which to justify denying the plaintiff a federal forum. See Kennedy...

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