Keith v. Volpe, 85-6336

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation858 F.2d 467
Docket NumberNo. 85-6336,85-6336
Parties, 26 Fed. R. Evid. Serv. 1249 Ralph W. KEITH, et al., Plaintiffs-Appellees, v. John A. VOLPE, as Secretary of Transportation, et al., Defendants. Earl WRIGHT, et al., Plaintiffs/Appellees on Supplemental Complaint, California Department of Housing and Community Development, et al., Intervenors/Appellees on Supplemental Complaint, v. CITY OF HAWTHORNE, et al., Defendants/Appellants on Supplemental Complaint.
Decision Date19 September 1988

Richard Tervian, Adams, Duque & Hazeline, Los Angeles, Cal., for defendants-appellants.

Bill Lee and Carrie Hempel, Center for Law in the Public Interest, Los Angeles, Cal., for plaintiffs-appellees.

John K. Van de Kamp, Atty. Gen. of State of Cal., Sylvia Cano Hale, Deputy Atty. Gen., Los Angeles, Cal., for intervenors-appellees.

Appeal from the United States District Court for the Central District of California.

Before SCHROEDER, NELSON and NORRIS, Circuit Judges.

SCHROEDER, Circuit Judge:


Individuals and groups concerned about the dislocation of people living in the path of a planned freeway in the Los Angeles area filed this action in 1972. They sued various state and federal agencies responsible for the freeway's construction and funding. Their complaint sought injunctive relief to halt construction of the freeway until the agencies made binding assurances that they would comply with state and federal laws designed to protect the environment, assure the availability of replacement housing for displaced residents, and eliminate discrimination against minority and poor persons seeking replacement housing.

After years of litigious skirmishing, the parties in 1981 entered into a consent decree setting forth the defendants' obligations. For purposes relevant to this appeal, those obligations included specific commitments to provide units of replacement housing for low and moderate income households. The district court approved the decree and dissolved the injunction, but retained jurisdiction to ensure that the terms of the agreement were fulfilled. Fulfilling the agreement's terms obviously required the cooperation of the municipalities located in the freeway's path, including the appellant City of Hawthorne. At the time the 1981 decree was entered, Hawthorne was a plaintiff in the action.

The present phase of the litigation began in 1985 when some of the original plaintiffs and other individuals sought injunctive relief against the City of Hawthorne ("City") by means of a "supplemental complaint" in the original proceeding. The City of Hawthorne and its officials had refused approval of certain housing developments. Plaintiffs alleged that this action resulted in unlawful discrimination against minority and low-income persons displaced by the freeway construction. The district court permitted the supplemental complaint, and after conducting evidentiary proceedings, enjoined the City from prohibiting construction of the units. Keith v. Volpe, 618 F.Supp. 1132, 1160 (C.D.Cal.1985). It then awarded attorney's fees and costs to the plaintiffs. Keith v. Volpe, 644 F.Supp. 1317, 1327 (C.D.Cal.1986).

The City of Hawthorne, Hawthorne's City Council, and five councilmembers The most significant legal issue is a threshold procedural one. It is whether the district court erred in permitting the plaintiffs to proceed in 1985 by means of a supplemental complaint in the original proceeding. The appellants maintain that the district court should have denied leave to file the supplemental complaint. The case would then have come before a different judge, one with no prior involvement in the litigation and one not familiar with the events leading to the consent decree. We hold that allowing the supplemental complaint was well within the district court's discretion under Fed.R.Civ.P. 15(d), which is designed to permit expansion of the scope of existing litigation to include events that occur after the filing of the original complaint. We affirm.

("Hawthorne") appeal. Hawthorne challenges plaintiffs' standing, the district court's evidentiary rulings, the sufficiency of the evidence, and the award of fees and costs.


This action began on February 16, 1972, when Ralph W. Keith and other individuals living in the path of the proposed Century Freeway, together with the Los Angeles Chapter of the National Association for the Advancement of Colored People (NAACP), the Sierra Club, the Environmental Defense Fund, and the Freeway Fighters filed an environmental and civil rights complaint in district court against various state and federal agencies and officials. The complaint sought injunctive relief to halt construction of the freeway until the defendants complied with state and federal environmental, civil rights, and housing laws to provide replacement housing for displaced residents without discrimination against minority and poor persons. Keith, 618 F.Supp. at 1137. The original defendants were the Secretary of the United States Department of Transportation, the Region 7 Administrator of the Federal Highway Administration, the United States Department of Transportation, the Federal Highway Administration, the Division Engineer of the Federal Highway Administration and United States Department of Transportation, the California Highway Commission, the California Department of Public Works, the Director of the California Department of Public Works, and the California State Highway Engineer. In April 1972, the plaintiffs amended their complaint to include as an additional plaintiff the City of Hawthorne, one of the cities through which the proposed freeway would pass.

On July 7, 1972, the district court issued a preliminary injunction prohibiting further work on the freeway until federal and state officials complied with environmental and relocation assistance statutes. Keith v. Volpe, 352 F.Supp. 1324 (C.D.Cal.1972), aff'd en banc sub nom., Keith v. California Highway Commission, 506 F.2d 696 (9th Cir.1974), cert. denied, 420 U.S. 908, 95 S.Ct. 826, 42 L.Ed.2d 837 (1975).

After years of negotiations, the parties entered into a consent decree, which the district court approved on September 22, 1981. Under paragraphs VI and VIII of the decree, the district court retained jurisdiction to enforce or amend the decree until it entered a judgment of dismissal upon the parties' compliance with the decree's terms. The court then dissolved the preliminary injunction, thus permitting further work on the freeway project pursuant to the decree's provisions. The decree remains in effect.

One of the purposes of the consent decree was "to provide for the housing needs of those living in the area of the proposed path of the freeway." Specifically, the decree required the defendants to provide displacees with 3700 units of replenishment housing under its "Housing Plan." Under the Plan's terms, 55 percent of all replacement units would be affordable to low-income households and 25 percent would be affordable to moderate-income households.

The current phase of the litigation concerns the proposed construction of two housing developments, the Cerise and Kornblum projects, in the City of Hawthorne. These developments would provide approximately 128 rental units. Because the Cerise project has since been abandoned The California Department of Housing and Community Development (HCD), which the consent decree designated as the agency responsible for the coordination and implementation of the Housing Plan, agreed to fund the Kornblum project pursuant to the consent decree. Kornblum's developer then applied to the Hawthorne Planning Department for a lot split, a zoning change, and a site development permit. The Planning Department recommended approval of the Kornblum Development subject to a covenant imposing a 35 percent ceiling on low-income occupants. After a public hearing, the Planning Commission voted to deny the developer's applications. The developer appealed the Planning Commission's decision to the City Council.

and any issue concerning it is moot, we are concerned only with the Kornblum Development, a proposed 96-unit apartment complex.

On November 13, 1985, the City Council held a public hearing, during which several local residents voiced their opposition to the Kornblum project. Residents expressed concern that the project would lead to increased crime and traffic, overcrowded schools, and lost taxes for the City. They also expressed opposition to having low-income families reside in their neighborhood. The council voted to deny the applications. It apparently did not discuss suitability or consider any alternatives to the project that would provide housing to poor and minority persons displaced by the freeway. See 618 F.Supp. at 1142.

On February 7, 1985, Keith and the other Century Freeway plaintiffs, with the exception of Hawthorne, moved for a preliminary injunction and for leave to file a supplemental complaint against the City of Hawthorne and city officials. The supplemental complaint alleged violations of the Supremacy Clause, the Fair Housing Act, 42 U.S.C. Secs. 3601-3631 (1982), the Fourteenth Amendment, Cal.Gov't Code Sec. 65008 (West Supp.1988), and the Equal Protection Clause of California's Constitution. The allegations stated various claims of the violation of federal and state laws prohibiting racial and economic discrimination.

Keith sought injunctive and declaratory relief based on Hawthorne's refusal to permit the construction of the Kornblum project and the City's imposition of a 35 percent low-income covenant on the Cerise project. On April 10, 1985, the district court granted Keith leave to file the supplemental complaint. The court also permitted HCD, the California Department of Transportation ("Caltrans"), and the Kornblum project developers to intervene.

Under Fed.R.Civ.P. 65(a)(2), the parties agreed...

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