Mahaley v. Cuyahoga Metropolitan Housing Authority

Decision Date22 February 1973
Docket NumberCiv. A. No. C 71-251,C 72-67.
PartiesArtie MAHALEY et al., Plaintiffs, v. CUYAHOGA METROPOLITAN HOUSING AUTHORITY et al., Defendants. Dorothy M. HARRISON et al., Plaintiffs, v. CUYAHOGA METROPOLITAN HOUSING AUTHORITY et al., Defendants.
CourtU.S. District Court — Northern District of Ohio

James I. Huston, Thomas J. LaFond, Schneider, Smeltz, Huston & Bissell, Cleveland, Ohio, for plaintiffs.

Robert Debevec, Law Director, City of Euclid, Euclid, Ohio, for City of Euclid, Harry J. Knuth, individually and as Mayor of City of Euclid, William H. Bretton, Harry L. Burkhart, Frank J. Chukayne, Edward Eckart, Milan A. Jaksic, Michael Kosmetos, John T. McCormack, Joseph E. Whalen and Stanley R. Zagorc, individually and as members of Council of the City of Euclid.

Loyal V. Buescher, Law Director, City of Solon, Cleveland, Ohio, for City of Solon, William E. Price, individually and as Mayor of City of Solon, John J. Kurpell, John Lechner, Vincent Marek, George C. Nierlich, Ralph Prasek, Albert A. Varga and George Vondrasek, individually and as members of Council of the City of Solon.

Theodore S. Holtz, Law Director, City of Garfield Heights, Garfield Heights, Ohio, for City of Garfield Heights, Raymond A. Stachewicz, individually and as Mayor of City of Garfield Heights, Betty F. Bennet, Frank J. Debelak, Eugene P. Kidd, Joseph Lamatrice, Joseph M. Maley, Edward J. Malley, Ralph Munson and Henry Piwkowski, individually and as members of Council of City of Garfield Heights.

Andrew Boyko, Law Director, City of Parma, Parma, Ohio, for City of Parma, John M. Petruska, individually and as Mayor of City of Parma, Francis E. Dobbins, Mary Dunning, Paul S. Kisil, Evelyn Kopchak, Kenneth G. Kuczma, Victor J. Labutta, Lynn W. Leary, George J. Novicky, Theodore P. Roth, John F. Sands, Jerome P. Stano, Stanley H. Wojas and John J. Zielinski, individually and as members of Council of City of Parma.

Robert Senor, Cleveland, Ohio, for City of Westlake, Alexander R. Roman, individually and as Mayor of City of Westlake, Ebert W. Berndsen, William Corley, Elmer P. Mang, Morton Nemet, William P. Skelly, Samuel B. Walls and James L. Wells, individually and as members of Council of City of Westlake.

Robert Bauer, U. S. Atty., for Department of Housing and Urban Development of United States, George Romney, as Secretary of Department of Housing and Urban Development of United States.

Nick DeVito, Asst. Law Director, Richard Hollington, Jr., Law Director, Ralph J. Perk, Mayor of the City of Cleveland, Frances Panehall, Joseph A. Lombardo, Michael J. Zone, Frank E. Gaul, Michael L. Climaco, Theodore E. Sliwa, Dennis Kucinich, Margaret McCaffery, Richard M. Harmody, William Franklin, James H. Bell, Charles V. Carr, individually and as members of Council of City of Cleveland, Walter C. Kelley, Jr., Fred J. Livingstone, Cleveland, Ohio, for Alfred I. Stolz, Robert E. Sweeney, Msgr. Francis W. Carney, Bertha Falkowski and Gwendolyn Hall, members of the Board of Cuyahoga Metropolitan Housing Authority, Robert J. Fitzgerald, Executive Director of Cuyahoga Metropolitan Housing Authority, City of Cleveland.

Before CELEBREZZE, Circuit Judge, BATTISTI, Chief Judge, and LAMBROS, District Judge.


BATTISTI, Chief Judge:

These are consolidated suits instituted pursuant to 42 U.S.C. § 1981 and § 1983 and arising under federal law invoking this court's jurisdiction pursuant to 28 U.S.C. §§ 1343(3), 1343(4) and 1331(a). They are brought in behalf of all tenants and applicants for low-income housing, the vast majority of whom are Negro, and the Path Association, a nonprofit corporation incorporated under the laws of the State of Ohio whose principal purpose is to stimulate the improvement of housing and related neighborhood conditions in the Greater Cleveland Metropolitan Area. The defendants are the Cuyahoga Metropolitan Housing Authority, which is a public corporation created under Section 3735.27 et seq. of the Ohio Revised Code and is authorized, inter alia, to engage in the development and administration of low rent housing in all areas of Cuyahoga County, except Chagrin Falls Township. Defendant Fitzgerald is the Director of defendant Cuyahoga Metropolitan Housing Authority. The members of the Board of CMHA are parties defendant in their official capacities. The defendant suburban cities in C 71-251, Euclid, Garfield Heights, Parma, Solon and Westlake (suburbs) are all municipal corporations within Cuyahoga County, established under the laws of the State of Ohio; all but Parma are chartered. The respective Mayors and Councilmen of the defendant suburbs are also parties defendant. The defendants in C 72-67 are the City of Cleveland, its Mayor, and its Councilmen. The defendant Department of Housing and Urban Development of the United States (HUD) is created under the laws of the United States and administers the federal low rent public housing laws. Defendant Romney is the Secretary of HUD and its chief executive official.

The plaintiffs are seeking a declaration that 42 U.S.C. § 1415(7)(b)(i) is unconstitutional on its face or as it has been applied. The named plaintiffs in C 71-251 are two Negroes and one White citizen of the United States who require low rent public housing for their health, safety and welfare. They represent a class of low-income residents of the Greater Cleveland Area, who by virtue of their poverty, or race, or both, are unable to secure decent, safe and sanitary housing at rents they can afford without the assistance of CMHA. The plaintiffs contend that the local consent requirement of 42 U.S.C. § 1415(7)(b) (i) permits and encourages the governing bodies of local municipalities to control the acceptance of low rent housing and has directly led to the containment of low rent housing into areas, almost entirely within the City of Cleveland, which are predominately Negro, in violation of the Fifth, Thirteenth and Fourteenth Amendments to the United States Constitution. In Count Two of C 71-251 the plaintiffs contend that the defendant suburban cities have declined to enter into Cooperation Agreements with CMHA in an attempt to perpetuate discrimination in housing patterns, which would concentrate Negroes largely within the City of Cleveland.

The named plaintiffs in C 72-67 are Negro tenants or applicants for CMHA public housing. Counts One and Two are substantially identical to their counter parts in C 71-251. Count Three of this complaint alleges that the number of units agreed to in the Cooperation Agreement of 1971 between the City of Cleveland and CMHA is inadequate to meet the needs for low income housing in Cleveland. Therefore, the plaintiffs pray that judgment be entered declaring that the failure of defendant councilmen to execute a "meaningful" Cooperation Agreement is in conflict with the plaintiffs' rights secured by the Fourteenth and Thirteenth Amendments, and that this court issue an order directing that CMHA and the City of Cleveland enter into a new Cooperation Agreement which more properly reflects low income housing needs.

42 U.S.C. § 1415(7)(b) provides:

"The Authority shall not make any contract for loans (other than preliminary loans) or for annual contributions pursuant to this chapter with respect to any low-rent housing project initiated after March 1, 1949
(i) unless the governing body of the locality involved has entered into an agreement with the public housing agency providing for the local cooperation required by the Authority pursuant to this chapter."

The Department of Housing and Urban Development upon the application of a local public housing agency may provide federal assistance for the acquisition or construction of low rent housing designed to meet unsatisfied housing needs. 42 U.S.C. § 1401 provides, in pertinent part:

"It is declared to be the policy of the United States to promote the general welfare of the Nation by employing its funds and credit, as provided in this chapter, to assist the several States and their political subdivisions to alleviate present and recurring unemployment and to remedy the unsafe and insanitary housing conditions and the acute shortage of decent, safe, and sanitary dwellings for families of low income . . . that are injurious to the health, safety and morals of the citizens of the Nation."

Specifically, the Secretary of HUD is authorized to make loans "to public housing agencies to assist the development, acquisition, or the administration of low-rent housing." 42 U.S.C. § 1409. The Secretary may also make annual contribution contracts with local public housing agencies to ensure the low-rent character of housing projects which are federally assisted. 42 U.S.C. § 1410(a). While preliminary loans are designed, in effect, to permit the local public housing agency to develop and initiate plans of acquisition for low-rent housing, annual contributions are intended to assist the agency in amortizing its bond indebtedness, which may be incurred in the actual costs of construction and land acquisition. 42 U.S.C. §§ 1409, 1410.

The low rent housing program is based upon the determination of local agencies, as demonstrated to HUD, that there exists a need for low-rent housing in the locality concerned "not being adequately met by private enterprise". 42 U.S.C. § 1415(7)(a). The responsibility for this assessment rests jointly with the local community and the local housing authority. If applicable federal requirements are satisfied, the Department of HUD may upon the application of the local public housing agency provide federal assistance by means of loans and annual contributions.

In its enactment of the United States Housing Act of 1949, 42 U.S.C. § 1401 et seq., the Congress expressly conditioned the provision of federal assistance either by preliminary loan or annual contributions upon the local public housing agency having entered into a local Cooperation Agreement with the governing body of...

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