Joseph Skillken & Co. v. City of Toledo

Citation528 F.2d 867
Decision Date10 December 1975
Docket Number74--2320,Nos. 74--2116,s. 74--2116
PartiesJOSEPH SKILLKEN AND CO. et al., Plaintiffs-Appellees, v. CITY OF TOLEDO et al., Defendants, and Ragan Woods Homeowners Association, Inc., et al., Intervenor-Defendants-Appellants. JOSEPH SKILLKEN AND COMPANY et al., Plaintiffs-Appellees, v. CITY OF TOLEDO et al., Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

William S. Boggs, Richard T. Bauer, Boggs, Boggs & Boggs, Ralph S. Boggs, Toledo, Ohio, for appellants in 74--2116.

Joseph R. Tafelski, R. Michael Frank, Joseph F. Vargyas, Toledo, Ohio, Jay Mulkeen, Washington, D.C., Theodore M. Rowen, William M. Connelly, Toledo, Ohio, Martin E. Sloane, Michael B. Barton, National Committee Against Discrimination in Housing, Washington, D.C., for plaintiffs-appellees in both cases.

Joseph P. Jordan, John D. Scouten, Law Dept., Toledo, Ohio, for defendants-appellants in both cases.

Before PHILLIPS, Chief Judge, WEICK, Circuit Judge, and MILES, * District Judge.

WEICK, Circuit Judge.

These two appeals were consolidated for oral argument.

They involve important questions of law in a low income public housing suit brought under 42 U.S.C. §§ 1401 et seq., §§ 1981--1983, 2000d et seq., §§ 3601 et seq., concerning the propriety of a mandatory injunction issued by the District Judge commanding the governing body of the City of Toledo, Ohio, namely, the members of the City Council, to rezone by a spot zoning ordinance an area in the neighborhood of expensive residential property in the Ragan Woods Addition, which area had been zoned previously under Toledo's comprehensive zoning ordinance. The mandatory injunction also required the defendants to approve a preliminary plat for that area, and for two other areas of the city, all to accommodate the construction of one hundred forty-five Turnkey III low cost public housing units in said areas.

They further involve the propriety of the order of the District Court, not considered in its published opinion, requiring the City Council to submit to the Court, within 90 days, a comprehensive plan for the integration of the residential neighborhoods of the City of Toledo.

The property owners in the Ragan Woods Addition filed a motion to intervene as defendants in the suit against the municipal defendants, on the ground that to change the existing comprehensive zoning ordinance to accommodate the construction of low cost housing would depreciate substantially the values of their properties. The motion to intervene, together with a proposed answer to the complaint, was promptly filed within three days after the municipal defendants had filed their answers to the complaint.

The District Judge summarily denied the motion without even a hearing, the grounds for denial being that it was untimely filed, that the property owners did not have sufficient interest, and that they were adequately represented by counsel for the municipal defendants.

Appeals were taken to this Court by the property owners who were denied intervention in case number 74--2116, and by the municipal defendants in case number 74--2320.

The municipal defendants moved for a stay of the District Court's mandatory injunction pending appeal, which stay was granted by the District Court, but only on condition that the City of Toledo execute a supersedeas bond in the amount of $880,709. 1 The City promptly posted the bond.

The plaintiffs in the case were Joseph Skillken & Company (Skillken), a Columbus, Ohio corporation, engaged in the development and construction of residential housing units, Toledo Metropolitan Housing Authority (TMHA), Jose Maldonado and Barbara Talley, a Mexican American and a Negro, on behalf of themselves and other low income minorities living in Toledo, and who allegedly are in need of housing.

The defendants were the City of Toledo, its Mayor, and the individual members of its Plan Commission and City Council. Skillken and TMHA were each represented by their own attorneys. Maldonado and Talley were represented by the attorneys of Advocates for Basic Legal Equality and the National Committee Against Discrimination in Housing. The municipal defendants were represented by the Director of Law of the City and his assistants.

The City had entered into a co-operation agreement with TMHA on August 12, 1968. 2 TMHA sought and received a reservation of funds from the Department of Housing and Urban Development (HUD) for the construction of 150 units of single-family low-income housing units under the Turnkey III Program. TMHA thereafter advertised for proposals on the 150 units. Skillken responded to the advertisement by submitting to TMHA a proposal for the construction of 140 units of single-family housing. The proposal was accepted and a letter designating Skillken as the Turnkey III developer was issued by the Director of TMHA. Under the Turnkey III Program the developer is responsible for securing sites and obtaining all necessary zoning and platting approvals.

Following discussions among Skillken, TMHA, and staff members of the Plan Commission, three sites were chosen upon which to construct the proposed public housing units. Skillken then entered into option contracts for the acquisition of real property to build as follows:

50 units of public housing on the Heatherdowns Boulevard site (hereinafter Heatherdowns);

46 units of public housing on the Holland-Sylvania site (Holland-Sylvania); and

34 units of public housing on the Stateline Road-Lewis Avenue site (Stateline).

In December, 1973 Skillken requested approval from the Plan Commission for the preliminary platting of the three proposed sites. Simultaneously Skillken petitioned the Plan Commission for a rezoning of the Heatherdowns site from an R--A residential classification of 20,000-square foot lots to an R--2 residential classification of 6,000-square foot lots, which would permit construction of fifty single-family low income housing units on lots of much smaller dimension than authorized by existing zoning. Zoning changes were not required for the Holland-Sylvania or Stateline sites, since existing zoning accommodated the proposals.

On January 24, 1974 the Plan Commission's staff conditionally recommended, and the Plan Commission accepted, the preliminary plat for the Holland-Sylvania site. 3 During this meeting consideration was given to the preliminary platting of the Stateline site, but action was deferred until February 7, 1974 when the Plan Commission met to consider the preliminary platting of the Stateline and Heatherdowns sites.

Residents from these areas attended the meeting and voiced strong disapproval The Plan Commission deferred action until its March 7, 1974 meeting, at which time it rejected Skillken's petition for the platting of the Stateline site on the basis that '(i)t is not in the best interests of the residents in that area . . .' The Plan Commission also rejected the petition for platting and the request to rezone the Heatherdowns site for the reason that '(t)he subdivision as presented . . . does not meet the area requirements for the zoning. . . .'

of the construction of public housing units because of the potential water drainage problems that higher density dwelling units would cause. Additional objections will be discussed later in this opinion.

Following this action by the Plan Commission the Toledo City Council preliminarily denied Skillken's request to rezone the Heatherdowns site on March 19, 1974. On March 21, 1974 the Plan Commission rescinded its prior approval for the Holland-Sylvania site, and on March 26, 1974 the Council formally rejected Skillken's request for rezoning the Heatherdowns site by passage of Resolution 1--74.

On May 28, 1974 the plaintiffs filed the present suit.

They sought a mandatory injunction to compel the members of the City Council of Toledo to rezone and plat the Heatherdowns site and to approve a plat for the Holland-Sylvania and Stateline sites so as to permit the construction of 130 low cost public housing units on said sites.

It was alleged that the action of the City Council and the Plan Commission was racially motivated by intentional and purposeful discrimination against black people who were in need of public housing.

The District Judge in his published opinion found a purposeful and intentional discrimination against black people on the part of the City Council and the Plan Commission, and directed counsel for plaintiffs to prepare an order granting relief to the plaintiffs.

The order, which was approved by the Court and entered on October 8, 1974, however, substantially deviated from the Court's published opinion. It provided that the defendants' acts--

. . . without any regard to the defendants' intentions or motivations, are and have the effect of being racially discriminatory, of perpetuating racial residential segregation and that these actions deny plaintiffs and the members of their class equal housing opportunities. . . .

Thus, 'in effect' discrimination was added, whereas the previous ground was purposeful and intentional discrimination, which was not proved.

But this was not all. The entire nature of the case was changed by the following order (which was not in the published opinion):

AND IT IS FURTHER

III

ORDERED that in order to eliminate the past and continuing effects of racial residential segregation, the defendants shall, after consultation with plaintiffs, submit to this Court within ninety (90) days after the entry of this order, a comprehensive plan whereby the defendant City of Toledo and Toledo City Plan Commission, their members, officers, agents, employees, and all persons acting in concert and participation with them, shall affirmatively engage themselves in substantial efforts to eliminate discriminatory barriers in the total housing supply and make housing in a broad choice of neighborhoods freely and fully available to minority persons.

AND IT IS FURTHER

...

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