Angell v. Zinsser

• Decision Date: 17 May 1979
• Docket Number: Civ. No. H-79-229.
• Citation: 473 F. Supp. 488
• Court: U.S. District Court — District of Connecticut
• Parties: Carol ANGELL et al. v. Carl A. ZINSSER et al.

473 F. Supp. 488

Carol ANGELL et al. v. Carl A. ZINSSER et al.

Civ. No. H-79-229.

United States District Court, D. Connecticut.

May 17, 1979.

COPYRIGHT MATERIAL OMITTED

Raymond R. Norko, Legal Aid Society of Hartford County, Hartford, Conn., Dennis J. O'Brien, Connecticut Legal Services, Inc., Willimantic, Conn., Diana Johnston, Connecticut Legal Services, Inc., Stamford, Conn., for plaintiffs.

Thomas Prior, David Barry, Manchester, Conn., William Shea, Hartford, Conn., for defendants.

RULING ON MOTION FOR PRELIMINARY INJUNCTION AND MOTION TO DISMISS

BLUMENFELD, District Judge.

The question presented by this motion is whether the government of the Town of Manchester, supported by a referendum vote, can choose to withdraw its application for an additional year's participation in a federally-funded community development block grant program, if the decision to do so was made for the purpose of maintaining racially discriminatory housing conditions in the Town.

I am asked to preliminarily enjoin the Town of Manchester from withdrawing its application for a Fifth Year Community Development Block Grant pending a full hearing on the merits of plaintiffs' claim that the decision to withdraw was made in order to perpetuate racially discriminatory housing conditions in the Town.

I. FACTUAL BACKGROUND

The Town of Manchester is a suburban town of slightly more than 50,000 residents within 15 minutes' commuting distance from the City of Hartford, Connecticut. Like many suburban towns located in metropolitan areas in the United States, its population is more than 98% white, while the core city to which it relates, Hartford, is more than 30% black and Hispanic. Its governing body is a nine-member council called the Board of Directors, all of whom are defendants here, which is elected from the Town at large for terms of two years.

Manchester has continuously participated in a federal grant program administered by the Department of Housing and Urban Development (HUD) known as the Community Development Block Grant (CDBG) program since the program's inception shortly after the enactment by Congress of the Housing and Community Development Act of 1974, 42 U.S.C. §§ 5301-5319 (the Act).¹ Because its population exceeds 50,000 people and it is within the metropolitan area of Hartford, Manchester is considered by HUD to be a "metropolitan city" for purposes of the CDBG program.² As a "metropolitan city" it is statutorily entitled to receive a pre-determined amount-certain of CDBG funds each year upon filing an application which complies with federal laws and regulations.³

During the first four years of the CDBG program, Manchester applied for and received approximately $1.5 million in funds, which it spent principally for the benefit of lower-income residents. During the fifth year of the program, 1979-1980, Manchester is entitled to receive approximately $500,000 in CDBG funds.

The controversy which is the subject matter of this law suit began to develop in late May 1978, when HUD's Hartford Area Office, after review of Manchester's Fourth Year CDBG Application and Third Year Annual Performance Report, informed the Town that it had "not taken the necessary steps to abide by the Title VIII Fair Housing⁴ Assurances which are an integral part of the CDBG application . . . and had not made significant progress in achieving HAP Housing Assistance Plan⁵ goals for . . . family households who are in need of housing assistance." (Letter of Daniel P. Koselar, Director of Community Planning and Development Division, Hartford Area Office, HUD, to Robert B. Weiss, General Manager, Town of Manchester, May 26, 1978.) At the same time HUD requested that an outline of the corrective actions the Town would undertake to remedy these deficiencies be submitted to the Area Office.

In response to this and other actions by HUD, Town officials took actions to conform to the fair housing objectives of the Act. They incorporated in their Fifth Year application a HAP more extensively committed to the expansion of low-income housing opportunities in Manchester, through CDBG-funded building code enforcement and CDBG-funded rehabilitation of existing dilapidated housing. Also, in August 1978, Manchester established a Fair Housing Office and hired a former State Senator and civil rights activist, one Wilber G. Smith, to serve as its Fair Housing Coordinator. Smith, who is black, shortly thereafter prepared and published a brochure designed to encourage minorities and lower income people to settle in Manchester. Several thousand copies of the brochure were printed and distribution was made.

Following these activities of the Town government and its fair housing coordinator, citizens of Manchester voiced objections to the continuation of the CDBG program; and wide newspaper publicity was given to the formation of a white citizens group called the Concerned Citizens for Manchester's Development and its circulation of a petition in an effort to compel the Town to hold a referendum at which the question of Manchester's continued participation in the CDBG program would be determined.⁶ The circulation of the petition triggered a heated public controversy among the residents of Manchester concerning, among other things, the alleged racist motives of the Concerned Citizens group and the independence of the Town from undue interference by agencies of the federal government.

In mid-January of 1979, the petition was filed with the Town Clerk and, subsequently, a special referendum was scheduled. Meanwhile, in February 1979, the Board of Directors, by a vote of six to three, decided to file an application with HUD seeking Fifth Year CDBG entitlement funds in the approximate amount of half a million dollars. On April 12, 1979, an application for Fifth Year funds was filed with HUD by Town officials. The application called for the funding of eleven different community development projects, most of which were intended principally to benefit lower-income people and some of which would be effective to alleviate racially exclusionary housing in the Town.

On April 17, 1979, the referendum was held, and by a vote of approximately three to one, an ordinance barring Manchester's participation in the CDBG program for two years was passed. Under the terms of the Town's Charter, § 3-10, the ordinance became "effective on the tenth day after such special election," i. e., April 27, 1979.

On April 18, 1979, the plaintiffs, white low-income residents of Manchester, filed this lawsuit on behalf of themselves and all those who are present or potential beneficiaries of the Manchester CDBG program seeking to enjoin the Town's withdrawal of its pending application for Fifth Year Funds. They also seek a declaration that the ordinance is void and unconstitutional. A hearing on this motion for a preliminary injunction was scheduled for April 27, 1979. On the eve of the hearing, and the day before the ordinance became effective, the Town's Board of Directors voted to withdraw their application from HUD. Before action could be taken implementing that decision, however, on April 27, 1979 a temporary restraining order was issued by this court barring the defendant-officials of the Town of Manchester "from taking any action . . . to withdraw the Town's application for the Fifth Year Community Development Block Grant presently pending before the Department of Housing and Urban Development." That order was extended, on May 7, 1979, for an additional ten days until May 17, 1979.

II. DISCUSSION

"The purpose of a preliminary injunction is to maintain the status quo pending a final determination of the merits . . .. It is an extraordinary remedy . . . ." Checker Motors Corp. v. Chrysler Corp., 405 F.2d 319, 323 (2d Cir.), cert. denied, 394 U.S. 999, 89 S.Ct. 1595, 22 L.Ed.2d 777 (1969) (citations omitted).

The test to be applied in deciding whether a preliminary injunction is appropriate in these circumstances recently has been made clear:

"The standard in the Second Circuit for injunctive relief clearly calls for a showing of (a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief. See Caulfield v. Board of Education, 583 F.2d 605, 610 (2d Cir. 1978); see also New York v. Nuclear Regulatory Commission, 550 F.2d 745, 750, 755 (2d Cir. 1977); Triebwasser & Katz v. American Telephone & Telegraph Co., 535 F.2d 1356, 1358-59 (2d Cir. 1976)."

Jackson Dairy, Inc. v. H. P. Hood & Sons, Inc., 596 F.2d 70, at 72 (2d Cir. 1979) (footnote omitted). See also Mulligan, Foreword —Preliminary Injunction in the Second Circuit, 43 Brooklyn L.Rev. 831 (1977). The Court of Appeals earlier explained the alternative standards on which to preliminarily evaluate the merits as follows:

"`The burden of showing probable success is less where the balance of hardships tips decidedly toward the party requesting the temporary relief.' Dino De Laurentiis Cinematografica, S. P. A. v. D-150, Inc., supra, 366 F.2d 373, 375 (2d Cir. 1966). In such a case, the moving party may obtain a preliminary injunction if he has raised questions going to the merits so serious, substantial, and difficult as to make them a fair ground for litigation and thus for more deliberate investigation."

Checker Motors Corp. v. Chrysler Corp., 405 F.2d 319, 323 (2d Cir.), cert. denied, 394 U.S. 999, 89 S.Ct. 1595, 22 L.Ed.2d 777 (1969) (some citations omitted). See also San Filippo v. United Brotherhood of Carpenters and Joiners, 525 F.2d 508, 511-12 (2d Cir. 1975); Gulf & Western Industries, Inc. v. Great Atlantic & Pacific Tea Co., 476 F.2d 687, 692-99 (2d Cir. 1973).

A. Irreparable Harm

From the evidence presented at the hearing on April 27, 1979, and based on the briefs submitted, it appears that irreparable harm will occur...