564 F.2d 126 (3rd Cir. 1977), 77-1241, Resident Advisory Bd. v. Rizzo

Docket Nº:Appeal of the PHILADELPHIA HOUSING AUTHORITY, in 77-1241.
Citation:564 F.2d 126
Party Name:RESIDENT ADVISORY BOARD by Rose Wylie, Trustee ad litem, Housing Task Force of the Philadelphia Urban Coalition by Shirley Dennis and Joseph Miller, Trustees ad litem, Esther Sierra Mendez, Individually and as guardian ad litem for her children, Carmelo, Mariel and Juanita, Jean Thomas, Individually and as guardian ad litem for her children, Cheryl
Case Date:August 31, 1977
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 126

564 F.2d 126 (3rd Cir. 1977)

RESIDENT ADVISORY BOARD by Rose Wylie, Trustee ad litem,

Housing Task Force of the Philadelphia Urban Coalition by

Shirley Dennis and Joseph Miller, Trustees ad litem, Esther

Sierra Mendez, Individually and as guardian ad litem for her

children, Carmelo, Mariel and Juanita, Jean Thomas,

Individually and as guardian ad litem for her children,

Cheryl, James, Kevin and Byris Thomas, Mable Smith,

Individually and as guardian ad litem for her children,

Jerome, Vanessa and Janice Smith, and Bernice Devine,

Individually and on behalf of her children Robert, Linda and

Arthur Devine, on their own behalf and on behalf of all

persons on the waiting list for public housing in the City

of Philadelphia, Pennsylvania

v.

Frank RIZZO, Individually and in his capacity as Mayor of

Philadelphia, Hillel Levinson, Individually and in his

capacity as Managing Director of the City of Philadelphia,

Appellants in 77-1245, James H. J. Tate, Individually, Fred

T. Corleto, Individually, Multicon Construction Corp.,

Multicon Properties, Inc., Redevelopment Authority of the

City of Philadelphia, Defendants,

and

Whitman Area Improvement Council, Alice Moore, Fred Druding,

and all Members of Whitman Area Improvement Council and its

Officers, Agents, Servants, Representatives and Employees,

and all other persons Acting in concert with them or

otherwise participating in their aid, Defendant-Intervenors,

and

Philadelphia Housing Authority, Redevelopment Authority of

the City of Philadelphia, Russell Byers, Individually and as

Regional Administrator of the U. S. Department of Housing

and Urban Development, Carla A. Hills, Individually and as

Secretary of the United States Department of Housing and

Urban Development, and United States Department of Housing

and Urban Development, Third-Party Defendants.

Appeal of the PHILADELPHIA HOUSING AUTHORITY, in 77-1241.

Appeal of REDEVELOPMENT AUTHORITY OF the CITY OF

PHILADELPHIA, in 77-1242.

Appeal of WHITMAN AREA IMPROVEMENT COUNCIL, Fred Druding and

all others acting in concert therewith, in 77-1243.

Nos. 77-1241 to 77-1243 and 77-1245.

United States Court of Appeals, Third Circuit

August 31, 1977

Argued June 6, 1977.

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Harold Cramer, Marc S. Cornblatt, Arthur W. Lefco, Philadelphia, Pa., for appellant in 77-1241; Mesirov, Gelman, Jaffe & Cramer, Philadelphia, Pa., of counsel.

Peter A. Galante, Nicholas J. Scafidi, Philadelphia, Pa., for appellant in 77-1242.

Joseph M. Gindhart, Crumlish & Gindhart, Philadelphia, Pa., for appellants in 77-1243.

James M. Penny, Jr., Julian Wessell, Asst. City Sols., Sheldon L. Albert, City Sol., Philadelphia, Pa., for appellants in 77-1245.

Jonathan M. Stein, Harold R. Berk, George D. Gould, Community Legal Services, Philadelphia, Pa., Charles W. Bowser, Philadelphia, Pa., for appellees Resident Advisory Board et al.

Drew S. Days, III, Asst. Atty. Gen., Brian K. Landsberg, Cynthia L. Attwood, Attys., Dept. of Justice, Washington, D. C., for U. S. as amicus curiae.

David Belmont, Gwendolyn N. Bright, Philadelphia, Pa., for amicus curiae, the Housing Ass'n of Delaware Valley.

Mercer D. Tate, John Ratliff, Philadelphia, Pa., for amicus curiae Fellowship Com'n.

Martin E. Sloane, Arthur D. Wolf, Washington, D. C., for amicus curiae Nat. Committee Against Discrimination in Housing, Inc.

Benjamin G. Lipman, Asst. Gen. Counsel, Sanford Kahn, Gen. Counsel, Pa. Human Relations Com'n, Philadelphia, Pa., for amicus curiae Pa. Human Relations Com'n.

Before WEIS, Circuit Judge, CLARK, [*] Associate Justice and GARTH, Circuit Judge.

OPINION

GARTH, Circuit Judge.

Plaintiffs, various individuals eligible for low-income public housing in Philadelphia and organizations with a membership interested in such housing, seek relief in this civil rights action against the City of Philadelphia, the City's housing authority ("PHA"), and its redevelopment authority ("RDA"), and the Department of Housing and Urban Development ("HUD"). The dispute centers upon a plot of land in South Philadelphia which was condemned and

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cleared as a site for low-income public housing in 1959, and which has remained vacant since then. The district court found that the four governmental defendants had committed violations of various constitutional and statutory duties, 425 F.Supp. 987 (E.D.Pa.1976). The court ordered injunctive relief as follows: (1) the governmental defendants were ordered to "take all necessary steps" for the construction of the planned project; (2) PHA was ordered to formulate a plan for the racial composition of the project when built and tenanted; (3) PHA was ordered to formulate a plan to further the integration of all Philadelphia public housing projects; and (4) all parties 1 were enjoined from interfering with the construction of the project. All defendants except HUD have appealed.

We affirm the district court's finding that, in delaying and frustrating the construction of the project, the City of Philadelphia acted with discriminatory intent and thereby violated plaintiffs' constitutional and statutory rights. We also affirm the finding that PHA and RDA have violated Title VIII of the Civil Rights Act of 1968 in failing to carry out the construction of the project; however, we affirm not on the ground relied upon by the district court 2 (that the agencies were liable for not acting affirmatively to end racial discrimination as mandated by § 3608(d)(5) of the Act, 42 U.S.C. § 3608(d)(5)), but on the ground that their activities in clearing the site "(made) unavailable or (denied) a dwelling to . . . person(s) because of race" within the meaning of 42 U.S.C. § 3604(a).

We therefore affirm those sections of the district court order directing the construction and tenanting of the project at issue (parts (1) and (2)). We also affirm so much of part (4) of the order as enjoins interference with the project's construction by the governmental defendants, but we vacate so much of that paragraph which enjoins the Whitman Area Improvement Council ("WAIC"). Because we can find no basis for the far-reaching equitable relief granted against PHA with respect to all public housing in Philadelphia, we also vacate part (3) of the district court's order.

I.

  1. Facts

    The focal point of this dispute is the Whitman Urban Renewal Area ("Whitman") in South Philadelphia. Within the Whitman Urban Renewal Area is the site of the project (henceforth "Whitman project") which is at issue here. Like other neighborhoods in urban America, Whitman has undergone a transformation in its racial composition over the past several decades. Unlike most, however, Whitman has changed from an originally racially mixed area to one which is virtually all-white. Moreover, this change has resulted almost wholly from the urban renewal efforts of the defendant governmental agencies.

    As revealed by the district court's analysis, Whitman's present all-white population must be viewed against a backdrop of, on the one hand, a growing concentration of blacks and other minorities in discrete, insular sections of Philadelphia (North Philadelphia, West Philadelphia and South Central Philadelphia), and on the other, a reduction

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    in the number of blacks residing in other parts of the city, including Whitman. The net result has been, in the words of the district court, that "(t)he City of Philadelphia is today a racially segregated city." 425 F.Supp. at 1006.

    This litigation involves not the city as a whole, however, but only the Whitman Urban Renewal Area for which the public housing at issue was planned. That area is a residential area consisting of block upon block of two-story row houses. Prior to the postwar concentration of blacks in the three sections of Philadelphia previously mentioned (North, West, and South Central Philadelphia), a substantial number of black residents could be found in Whitman's row houses. Still, a trend away from a dispersed black population throughout Philadelphia and, by inference, a trend away from an integrated Whitman was evident as early as 1940. That year's census revealed a decline of about 300 blacks from the population of Whitman. 425 F.Supp. at 1009. As late as 1950 though, a number of black households were to be found in the southeast and northwest corners of this area. Indeed, 75 black families lived in the southeast corner alone, Exhibit P-168. Of this number 52 families lived in a five-square-block area that would be leveled during 1959-60 in the initial phase of urban renewal in Whitman. As found by the district court, these 52 households constituted "46% of the families living (in this five-block area), which made this area an integrated section of Philadelphia." 425 F.Supp. at 1009.

    Though integrated, Whitman was also somewhat dilapidated although subsequent developments were to show that the existing housing stock, i. e., the two-story row houses, could be salvaged through renovation. In the mid-1950's, however, renewal meant something other than renovation or restoration: renewal meant the razing of existing structures and the construction of "public housing" high-rise buildings. Thus when urban renewal came to Whitman in 1959-60, the integrated, five-block site mentioned above 3 was cleared of its residents, and its structures were leveled. The cleared site has remained virtually untouched, and without building construction, since that time.

    Such, of course, was not the plan. The Philadelphia Housing Authority ("PHA") acquired the site through...

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