Banks v. Perk, Civ. A. No. 72-115.

CourtUnited States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
Writing for the CourtBATTISTI
Citation341 F. Supp. 1175
PartiesMaryann BANKS et al., Plaintiffs, v. Ralph J. PERK, as Mayor of the City of Cleveland, et al., Defendants.
Docket NumberCiv. A. No. 72-115.
Decision Date02 May 1972

341 F. Supp. 1175

Maryann BANKS et al., Plaintiffs,
v.
Ralph J. PERK, as Mayor of the City of Cleveland, et al., Defendants.

Civ. A. No. 72-115.

United States District Court, N. D. Ohio, E. D.

May 2, 1972.


341 F. Supp. 1176
COPYRIGHT MATERIAL OMITTED
341 F. Supp. 1177
C. Lyonel Jones, Edward R. Stege, Jr., Lloyd Snyder, Cleveland, Ohio, American Civil Liberties Union of Greater Cleveland, Eugene Sidney Bayer, Cleveland, Ohio, Nat'l Assoc. for the Advancement of Colored People, Russell Adrine, Cleveland, Ohio, for plaintiffs

Richard Hollington, Malcolm Douglas, Law Director, Nicholas DeVito, Asst. Law Dir., Frederick J. Livingstone, Kelley & McCann, Walter Kelley, Jr., Cleveland, Ohio, for defendants.

MEMORANDUM OPINION AND ORDER

BATTISTI, Chief Judge.

A. INTRODUCTION

This suit is instituted pursuant to 42 U.S.C. §§ 1981 and 1983 and invokes the jurisdiction of this Court pursuant to 28 U.S.C. § 1343(3) and (4). It is brought in behalf of all Negroes and Non-White tenants in and applicants for public housing in the City of Cleveland. The defendants, Perk, Petro and Rush (hereinafter referred to as the City or its agents) are sued in their official capacities as Mayor, Executive Secretary to the Mayor, and Building Commissioner of the City of Cleveland, respectively. The defendant Cuyahoga Metropolitan Housing Authority (CMHA) is a public corporation created under Section 3735.27 et seq. of the Ohio Revised Code, and is authorized to engage in the development and administration of low-rent public housing in the City of Cleveland. Defendant Fitzgerald is sued in his official capacity as Executive Director of CMHA.

The plaintiffs are seeking a declaration that the action of defendant City and its agents in revoking or permitting the revocation of building permits for construction of public housing at the Green Valley and Crest Drive sites violates the due process and equal protection clauses of the Fourteenth Amendment of the United States Constitution; an injunction restraining these defendants from further perpetuating what they allege to be the racially discriminatory public housing system by any interference with the expeditious completion of any and all public regular family housing units which are already planned for construction in predominately White neighborhoods; to restrain these defendants from imposing any burdens on the planning and construction of public housing which are more onerous than those placed upon the planning and construction of any private housing, building or structure; and to restrain defendants Perk, Petro, and Rush from failing to immediately issue all necessary building permits to enable the prompt commencement of construction of the planned public housing units at Green Valley and Crest Drive. CMHA has joined in Count I as a cross-claimant against the City defendants.

Count II is directed against CMHA. The plaintiffs pray that CMHA's practice of racially discriminatory site selection for regular family public housing be declared to be violative of the Fourteenth Amendment and that a preliminary injunction

341 F. Supp. 1178
issue restraining the planning, letting of bids, or construction of any public housing units in the Negro neighborhoods on the east side of the City of Cleveland. They also pray for a permanent injunction which would enjoin construction of public housing in the Negro neighborhoods on the east side of the City unless and until such time as there is a balance achieved of regularly equal number of regular family public housing units in all areas and wards of the City

The City of Cleveland is a racially divided city. Except for a small pocket of Negroes on the west side of the Cuyahoga River, in the Bellaire Section, almost all (96%) of the Negro citizens of the City live on the east side of the River. The Negro population of the City of Cleveland has grown dramatically since 1930 when Negroes constituted only 8% of the total population of the City. Today it is more than 38%. Since 1950 three neighborhoods on the east side of Cleveland, Hough, Glenville and LeeSeville, have changed from primarily White to almost entirely Negro. As a result, the schools in the City of Cleveland are quite badly segregated. Of the 183 public schools in the City, 85 are 90% to 100% Negro, and 72 are under 10% Negro. Approximately 95% of the Negro children attending public schools in the City attend schools which are all or substantially all Negro. In addition, in the last six years more than 5,000 jobs have moved from Cleveland's inner city to the outskirts of the City and to nearby suburbs. Access to these jobs has decreased for those who live in the inner city. Since this city is faced with such a massive segregation problem, a dispersal of urban housing patterns seems to be the most reasonable alternative to a massive busing program in order to eliminate the resulting segregation in the public schools. See Crow et al. v. Brown et al., 332 F.Supp. 382 (N.D.Ga. 1971) aff'd 457 F.2d 788 (5th Cir. 1972).

B. COUNT I

It is well known that the issue of public housing, like the issue of school busing, is being hotly debated. Many oppose public housing with the best of motives, while some, unfortunately, oppose it on racial grounds. If our constitutional system is to survive, we must move with the greatest of speed to end any and all discrimination based upon race in every area of human endeavor, including, obviously, schools, housing and jobs.

It has been more than one hundred years since the adoption of the Thirteenth, Fourteenth, and Fifteenth Amendments and almost twenty years since the landmark case of Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) was decided by a unanimous Supreme Court. Yet, unless realistic action is taken within the immediate future, we may expect the east side of Cleveland to become almost totally Black, while the west side will remain largely White.

On November 8, 1971, a new city administration took office. Prior to this date, it was announced that this administration would oppose public housing in areas where the majority of the residents were opposed to the projects. However, a proposal was made for a "new town-in-town" project for the Negro neighborhoods on the east side of Cleveland. On November 10, 1971, defendant City and its agents ordered the Green Valley permits revoked. The Green Valley site, along with the Crest Drive site, are in Ward 9 on the west side. Green Valley was to consist of 132 units, while Crest Drive was to consist of 18 units. Both of these developments are to be constructed pursuant to the 1949 Co-operation Agreement between CMHA and the City.

The stated basis for the revocation of the Green Valley permits was that the person who applied for the permits was not the owner of the property and did not have a valid option to purchase the property. The defendant City did not seek the opinion of its Law Department on the propriety of the building permits or their revocation. However, prior to the granting of the building permits, the Law Department was asked to determine whether these permits could be

341 F. Supp. 1179
granted. The Law Department found that the permits could be granted upon the submission of an affidavit by the applicants, Building System, Inc. (BSI). This was done and the permits were issued

On November 9, 1971, representatives of Rzepka Construction Company, to whom building permits had been granted for the Crest Drive site, sent a letter to the Chief Building Inspector requesting an extension of previously granted building permits for the Crest Drive site. That letter read in part:

"We request that the enclosed permits be extended for a period of ninety (90) days because of the inclement weather conditions. Ground was broken on November 8, 1971, and construction will continue as soon as possible."

The permits were extended upon receipt of this letter.

On December 22, 1971, defendant City ordered suspension of the Crest Drive permits. It found that Rzepka Construction Company had misrepresented in its November 9 request for an extension that construction had commenced, which allegedly constituted a violation of Section 5.0707 of the Codified Ordinance of the City of Cleveland.

The record is clear that there was neither a misrepresentation nor had construction begun. Subsequent to the granting of the extension there were discussions between a consultant for Rzepka and members of the defendant City's Building Division to discuss foundation design for the Crest Drive sites. In addition, if construction had begun on the site, there would be no need for an extension of the building permit. It should be noted that no provision in the Ordinance of the City exists for the suspension of building permits. On January 20, 1972, this was rectified by the revocation of the Crest Drive permits.

The actions of defendant City and its agents are regrettable. Such actions, while perhaps rationalizable on other grounds, clearly have a racially discriminatory effect. The revocation of the building permits for the Green Valley and Crest Drive sites constitutes a violation of 42 U.S.C. §§ 1981, 1983, 2000d and 3601 et seq. in that it denies the Negro plaintiffs equal protection of the laws, subjects them to discrimination on grounds of race or color in the federally assisted public housing program and deprives them of the right to equal access to housing on a non-discriminatory basis. Kennedy Park Homes et al. v. Lackawanna, 436 F.2d 108 (2d Cir. 1971), cert. den., 401 U.S. 1010, 91 S.Ct. 1256, 28 L.Ed.2d 546 (1971); Dailey v. City of Lawton, 425 F.2d 1037 (10th Cir. 1970); Crow v. Brown et al., 332 F.Supp. 382 (N.D.Ga.1971), aff'd. 457 F.2d 788 (5th Cir. 1972). See generally, Hawkins et al. v. Town of Shaw, Mississippi et al., 461 F.2d 1171 (5th Cir. 1972 (en banc)).

There was no factual basis on which to revoke the permits here in question. The revocations were arbitrary,...

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