Raso v. Lago, Civil Action No. 96-11945.

• Citation: 958 F.Supp. 686
• Decision Date: 06 January 1997
• Docket Number: Civil Action No. 96-11945.
• Parties: Alfred J. RASO, et al., Plaintiffs, v. Marisa LAGO, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

Page 686

958 F.Supp. 686

Alfred J. RASO, et al., Plaintiffs, v. Marisa LAGO, et al., Defendants.

Civil Action No. 96-11945.

United States District Court, D. Massachusetts.

January 6, 1997.

COPYRIGHT MATERIAL OMITTED

Chester Dowling, Boston, MA, Donald P. Zerendow, Cohasset, MA, for plaintiffs.

Saul Schapiro, Boston, MA, for Marisa Lago, Boston Redevelopment Authority.

Susan M. Poswistilo, U.S. Atty's Office, Boston, MA, for Henry G. Cisneros, Dept. of Housing & Urban Development.

Kevin S. McDermott, Boston, MA, for Thomas Menino, City of Boston, Victoria L. Williams, Boston Fair Housing Com'n, Boston Housing Authority, Rudolph F. Pierce, Lynne Alix Morrison, David W. Fanikos, Boston, MA, Michael L. Altman, Boston, MA, Richard Bluestein, Paul Holtzman, Boston, MA, for Robert H. Kuehn, Jr., Keen Dev. Corp., Michael F. Groden, Planning Office for Urban Affairs, Inc., Lowell Square Associates, Lowell Square Coop. Ltd. Partnership, Mark Maloney, Maloney Properties.

MEMORANDUM AND ORDER

WOLF, District Judge.

I. INTRODUCTION

Plaintiffs, a putative class headed by several former residents of Boston's Old West End neighborhood and the Old West End Housing Corporation ("OWEHC"), an organization devoted to the resettlement of former West End residents, seek among other things a declaration that they are entitled to preference for all of the new dwelling units soon to become available in the buildings now being constructed at West End Place. Plaintiffs have named as defendants numerous parties who, for purposes of identification and representation, can be categorized into four groups: (1) the Boston Redevelopment Authority and its Director, Marisa Lago, (collectively the "BRA"); (2) the United States Department of Housing and Urban Development ("HUD") and its Secretary, Henry Cisneros, (collectively the "Federal Defendants"); (3) the City of Boston and its Mayor, Thomas Menino, the Boston Fair Housing Commission and its Director, Victoria Williams, and the Boston Housing Authority, and its Director, Sandra Henriquez,¹ (collectively the "City Defendants"); and (4) Keen Development Corporation and its President, Robert Keuhn, Jr., who is also a Trustee of the Lowell Square Nominee Trust, the Planning Office of Urban Affairs, Inc. and its Director, Reverend Michael Groden, also a Trustee of the Lowell Square Nominee Trust, Lowell Square Associates, Joint Venture, Lowell Square Cooperative L.P., and Maloney Properties, Inc., and its President Mark Maloney (collectively the "Developer Defendants").

The court first encountered this case on October 21, 1996 in the form of an emergency motion for a preliminary injunction, which plaintiffs filed in an effort to halt the preliminary housing lottery for units at West End Place scheduled for October 29, 1996. In a hearing held on October 28, 1996, plaintiffs withdrew their effort to enjoin the lottery because the Developer Defendants were willing to permit members of their putative class to be present and monitor the lottery process. See October 28, 1996 Transcript at 3.

The Developer Defendants, however, informed the court that the mere pendency of this case constitutes an event of default under the terms of their loan agreements and its perpetuation could imperil the project's financing. Therefore, the court established a schedule for the expeditious resolution of defendants' then planned motion to dismiss. After an opportunity for discovery related to issues the defendants informed the plaintiffs they would raise in their motion to dismiss, on November 20, 1996 the court heard argument on that motion which, to the limited extent it relies on information outside the Complaint (which incorporates a number of exhibits), is being treated as a motion for summary judgment. See Fed. R. Civ. P. 12(b)(6).

As explained below, the court finds that plaintiffs may lack standing to litigate whether the BRA's actions required the approval of the Boston City Council and, in any event, this claim is time-barred. The court has considered the merits of every other claim in the complaint and finds that plaintiffs have no statutory or contractual property right to an absolute preference to the units at West End Place. The absence of a state-created property interest eliminates plaintiffs' claim, under 42 U.S.C. § 1983, that they had a right to due process that has been violated.

Plaintiffs also appear to allege in Count III that the defendants' plan to affirmatively solicit minority applicants for West End Place discriminates against them because they are predominantly white, in violation of their Fourteenth Amendment right to equal protection under the law. To the extent that plaintiffs attack defendants' affirmative marketing plan facially, their claim is deficient because it fails to allege that the defendants acted with discriminatory intent, and because the affirmative recruitment of minority applicants is not itself a "benefit" subject to equal protection analysis; the plan for actual tenant selection does not provide for consideration of race or give minorities any preference. Plaintiffs' claim under Title VI of the Civil Rights Act of 1964 is similarly deficient. Finally, plaintiffs' allegation that the plan violates Title VIII of the Civil Rights Act of 1968 is being dismissed for failing to allege specific facts that would permit a finding that some practice disproportionately burdens a protected class.

To the extent, however, that the equal protection, Title VI, and Title VIII claims are meant to challenge an illegal divergence from the terms of the affirmative marketing plan during its operation, they appear to be premature. However, the court will provide the parties an opportunity to address whether plaintiffs should be afforded an opportunity to move to amend their complaint, or whether these claims should now be dismissed without prejudice.

II. FACTS

Except as otherwise noted, the facts of this case are taken from the Complaint and the exhibits it incorporates. In approximately 1959, as part of an urban renewal project, the City of Boston took title by eminent domain to a large swath of land in Boston known as the West End. Approximately three thousand households were displaced by this government action. Compl., ¶ 35. These residents were a largely immigrant community composed of a mix of different ethnic groups, including Irish, Italians, Jews, Greeks, Poles, Albanians, Ukrainians, Russians, Native Americans and African-Americans. Id. at ¶ 32. Defendants estimate that the displaced residents were approximately 98% white. Declaration of Merryl Gibbs ("Gibbs Decl."), Federal Def.'s Opposition to Pl.'s Motion for Preliminary Injunctions and Orders ("Fed. Def.'s Opp. to P/I"), Exhibit 2, at ¶ 15. The plaintiffs evidently do not dispute the fact that the overwhelming majority of the displaced residents were white.² In any event, although numerous redevelopment projects over the years erected new residential structures in the West End, many of the displaced residents of the Old West End were unable to afford the new housing and, therefore, were unable to return to their old neighborhood. Id. at ¶ 33.

Under the original West End Plan of 1959, Charles River Park, Inc. ("CRP") was designated the private redeveloper of the Plan Area. In 1990, a state court determined that CRP had defaulted under the Master Lease Agreement. Id. at ¶ 36. Within the next year, the BRA designated Lowell Square Associates ("LSA") as the redeveloper of the last remaining undeveloped parcel of the Old West End the land at the intersection of Causeway Street and Lomasney Way, known as "Lowell Square" or "Area E." Id. at ¶ 44. In a grant proposal, LSA stated that "Lowell Square is the last opportunity for the City and State to assist former West Enders and other low and moderate income households to reclaim a corner of this community." Id. at ¶ 50.

At about the same time that LSA was designated the redeveloper of Area E, United States District Judge Walter J. Skinner presided over the conclusion of a decade-long legal battle between the Boston Chapter of the National Association for the Advancement of Colored People ("NAACP") and HUD concerning the availability of public housing to minorities in Boston. In that litigation, Judge Skinner found that:

HUD had failed to satisfy the minimum levels of compliance required by [42 U.S.C.] § 3608(e)(5) in two respects. First, the agency did not require the City to establish an effective fair housing enforcement program in the face of its knowledge of pervasive racial discrimination in the City. Second, despite its knowledge that a housing emergency existed which had a disproportionate impact on low income black families, HUD did not condition its provision of federal funds ... on construction of affordable integrated public housing.

NAACP, Boston Chapter v. Kemp, 721 F.Supp. 361, 365 (D.Mass.1989);³ see also NAACP, Boston Chapter v. Pierce, 624 F.Supp. 1083, 1085 (D.Mass.1985), vacated on other grounds, 817 F.2d 149 (1st Cir.1987). In light of those findings, on March 8, 1991 Judge Skinner entered a Consent Decree obligating HUD, among other things, to require any recipient of federal housing funds to implement an affirmative fair housing marketing plan in order to enhance low-income African-American households' access to affordable housing in the Boston area. NAACP, Boston Chapter v. Kemp, No. 78-850-S, slip op. (D.Mass. March 8, 1991), attached at Compl., Exhibit C ("Consent Decree"), at 2. The Consent Decree established as a goal that affirmative marketing programs achieve a racial composition in federally assisted housing which "reflects the racial composition of the City [of Boston] as a whole." Id. It also expressly stated, however, that: "Nothing herein shall constitute or be construed as requiring a quota." Id.

The Lowell Square project is, in part, federally funded through several programs administered by HUD.⁴ Among the criteria established...