Joseph Skillken and Company v. City of Toledo

• Decision Date: 28 August 1974
• Docket Number: Civ. No. 74-202.
• Citation: 380 F. Supp. 228
• Parties: JOSEPH SKILLKEN AND COMPANY et al., Plaintiffs, v. CITY OF TOLEDO et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

380 F. Supp. 228

JOSEPH SKILLKEN AND COMPANY et al., Plaintiffs, v. CITY OF TOLEDO et al., Defendants.

Civ. No. 74-202.

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

August 28, 1974.

Theodore M. Rowen, William M. Connelly, Joseph R. Tafelski, Toledo, Ohio, Jay Mulkeen, Washington, D. C., for plaintiffs.

Joseph P. Jordan, John D. Scouten, Toledo, Ohio, for defendants.

MEMORANDUM

DON J. YOUNG, District Judge.

I. Introduction

This suit is instituted pursuant to several enactments within Title 42 of the United States Code. The specific sections are 1401 et seq., 1441 et seq., 1981, 1982, 1983, 2000d et seq., and 3601 et seq. The action is also based upon the Thirteenth and Fourteenth Amendments to the United States Constitution. The jurisdiction of this Court is founded upon 28 U.S.C. § 1331 and § 1343; 42 U.S.C. § 3612 and § 3617. The plaintiffs are: Joseph Skillken Company (hereinafter Skillken) a corporation engaged in the development and construction of residential dwelling units; Toledo Metropolitan Housing Authority (hereinafter TMHA); and low income minority persons on behalf of themselves and all other low-income minority residents who seek the opportunity to live in decent, safe, and sanitary housing in the City of Toledo, outside areas of minority concentration.¹ There are numerous defendants in this lawsuit and they appear as follows: The City of Toledo (hereinafter City), a body corporate and politic, established and organized under the laws of the State of Ohio; Mayor Kessler, duly elected Mayor of the City of Toledo and as such the Chief Executive Officer of the City and a member of the Council of the City; Defendants Cook, Copeland, Daoust, Douglas, Galvin, Nies, Pietrykowski and Reddish, the duly elected Council members of the City of Toledo; Defendant Toledo City Plan Commission (hereinafter Commission), a commission established and organized under the laws of the State of Ohio, § 3735.27 et seq. Ohio Rev.Code, and the City of Toledo. The Commission's duties include the responsibility to review requests for rezoning and platting and to ensure their compliance with the Toledo zoning ordinances and subdivision regulations. Defendants Burke, Cooke, Martin, Schimmel and Stoepler, are members of the Commission appointed pursuant to the laws of the State of Ohio and the City of Toledo.

II. Background

On August 12, 1968 the City and TMHA entered into a Cooperation Agreement which provides in paragraph nine:

So long as any contract between the Local Authority and HUD for loans, (including preliminary loans) or both in connection with any Project remains in force and effect, or so long as any bonds issued in connection with any Project or any monies due to HUD in connection with any Project remain unpaid, this Agreement shall not be abrogated, changed, or modified without the consent of HUD. The privileges and obligations of the Municipality hereunder shall remain in full force and effect with respect to each project so long as the beneficial title to such Project is held by the Local Authority or by any public body or governmental agency, including HUD, authorized by law to engage in the development or administration of low-rent housing projects. If at any time the beneficial title to, or possession of, any Project is held by such other public body or governmental agency, including HUD, the provisions hereof shall inure to the benefit of any may be enforced by, such body or governmental agency, including HUD.

Furthermore, the agreement contains no provision which can be construed to give the City power to approve or disapprove sites selected for low-rent housing projects by TMHA. To meet its obligations under the Cooperation Agreement, TMHA sought and received a reservation of funds from HUD for the construction of 150 single family housing units under the Turnkey III Program.² Accordingly, TMHA advertised for proposals on the 150 units and Skillken responded to the advertisement by submitting a proposal to TMHA for the construction of 140 units of single family housing. Skillken's proposal was accepted by TMHA and a letter designating Skillken as the Turnkey developer was issued by Carl Barrett, Director of TMHA. Thereafter discussions between Skillken, TMHA and the Commission's staff resulted in choosing three sites upon which to build the proposed public housing units. Skillken then entered into option contracts for the acquisition of real property to build: 50 units of public housing on the Heatherdowns Boulevard site (hereinafter Heatherdowns); 46 units of public housing on the Holland-Sylvania Road site (hereinafter Holland-Sylvania); and 34 units of public housing on the Stateline RoadLewis Avenue site (hereinafter Stateline). In December 1973, Skillken sought approval from the Commission for the preliminary platting of the three proposed sites.³ Simultaneously, Skillken petitioned the Commission for a rezoning of the Heatherdowns site to permit construction of single-family low-income housing on lots of smaller dimension than the existing zoning provides. This was not required for the Holland-Sylvania and the Stateline sites since the existing zoning accommodated Skillken's proposals. The Commission's staff recommended to the Commission that it approve Skillken's requests with regards to the rezoning of the Heatherdowns site and the preliminary platting for all three sites. On January 24, 1974 the Commission approved the plat for the Holland-Sylvania site. Subsequently it was revealed that Skillken's development was intended for public housing.⁴ This led to a series of events which culminated in the commencement of this lawsuit. On March 7, 1974 the Commission rejected Skillken's petitions for the platting of the Stateline and Heatherdowns sites and also for the rezoning of the Heatherdowns site. After reviewing the Commission's action on rezoning the Heatherdowns site, the Toledo City Council preliminarily denied Skillken's request for rezoning on March 19, 1974. On March 21, 1974 the Commission rescinded its earlier approval of the preliminary platting for the Holland-Sylvania site. On March 26, 1974, City Council finally and formally rejected Skillken's request for rezoning of the Heatherdowns site by passage of Resolution 1-74.

The plaintiffs filed this action on May 28, 1974. At the request of the plaintiffs and because of its importance, not only to the parties involved but also to the community, the case was expedited for an early hearing which the Court scheduled for July 15, 1974. The defendants subsequently requested a trial by jury which the plaintiffs opposed. The Court without ruling upon defendant's right to a trial by jury, bifurcated the trial so that the issue of injunctive relief would be heard to the Court without a jury pursuant to Curtis v. Loether, 415 U.S. 189, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974).⁵ After ruling upon various preliminary matters,⁶ the hearing upon plaintiffs' request for declaratory and permanent injunctive relief commenced on July 15, 1974, and continued, with interruptions on July 18, into the morning of July 19, 1974.

III. Housing

The City of Toledo, according to the 1970 census, had a population of 383,818 persons; 329,068, or approximately 86%, were white; 52,915, or approximately 14% were black; and 1,835, or less than 1% were of other minority groups. It quickly became apparent from the testimony of various witnesses and the statistical evidence submitted that the City of Toledo is a racially segregated city with minority groups⁷ heavily concentrated in limited sections of the City known as the "Southwest Corridor," or the "Black Corridor".⁸ The forces which brought about this segregated housing pattern were many. Among them were a policy of channeling or steering white prospective buyers away from black neighborhoods and black prospective buyers away from white neighborhoods by real estate agents. Blacks also encountered far greater difficulty in obtaining financing for homes than their white counterparts. Unfortunately, the record very clearly shows that these forces are still at work with the effect of creating de facto segregation not only in housing but also in the racial composition of the public schools in the City.⁹

Past public housing projects were, until very recently, consistently placed in areas adjacent to already highly concentrated minority housing further adding to the segregated pattern. TMHA and the Commission's Staff, in an attempt to change that policy and scatter public housing projects throughout the City, cooperated with Skillken in selecting three sites which they believed would accomplish this purpose. The Heatherdowns site,¹⁰ the Stateline site¹¹ and the Holland-Sylvania¹² site are all located in areas where there is 0-2% minority population. Furthermore the sites would be scattered in distinct sections of the City: Heatherdowns in the southwest corner, Holland-Sylvania in the west and Stateline in the north. The testimony very clearly showed that given the presently existing and quite limited availability of land in the City, the sites could not be scattered more. The records of the hearings before the Commission and the Council are a sad display of bigotry, intolerance, and selfishness at its worst. With a great, but totally hypocritical, show of piety, public officials and neighboring property owners pretended that to develop groups of dwellings would only create new ghettoes and that acceptable minority housing can only be obtained by building or buying individual houses throughout the city, or better still, by going out into the suburbs or rural areas beyond the city. The evidence in this case leaves no doubt that the actions and attitudes which have created segregation in Toledo are so strong and so persistent that only very positive court action can change the present housing patterns. The housing that was proposed for these sites would be under HUD's Turnkey III Program, which provides that the...