Resident Advisory Bd. v. Rizzo

• Decision Date: 19 December 1980
• Docket Number: Civ. A. No. 71-1575.
• Citation: 503 F. Supp. 383
• Parties: RESIDENT ADVISORY BOARD et al. v. Frank L. RIZZO et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

503 F. Supp. 383

RESIDENT ADVISORY BOARD et al. v. Frank L. RIZZO et al.

Civ. A. No. 71-1575.

United States District Court, E. D. Pennsylvania.

April 1, 1980.

On Motion for Clarification December 19, 1980.

Jonathan M. Stein, Harold R. Berk, Community Legal Services, Philadelphia, Pa., for Resident Advisory Board.

Alan J. Davis, City Sol., Mark A. Aronchick, Asst. City Sol., Philadelphia, Pa., for City of Philadelphia.

Harold Cramer, Arthur W. Lefco, Philadelphia, Pa., for Philadelphia Housing Authority.

Peter F. Vaira, U. S. Atty., Walter T. Batty, Jr., John Penrose, Asst. U. S. Attys., Philadelphia, Pa., for Housing and Urban Development.

Peter A. Galante, Philadelphia, Pa., for Redevelopment Authority.

Joseph M. Gindhart, Philadelphia, Pa., for Whitman Council, formerly Whitman Area Improvement Council.

Richard S. Meyer, Stephen J. Harmelin, Thomas J. Bender, Jr., Philadelphia, Pa., for Jolly Construction Co. and A & R Development, Inc.

MEMORANDUM

RAYMOND J. BRODERICK, District Judge.

In considering plaintiffs' motion to enjoin this most recent attempt to interfere with the construction of the Whitman Park townhouses as ordered by this Court, it is necessary once again to review the history of this protracted litigation. Having found that the actions of municipal and federal defendants in terminating the construction of the townhouses amounted to statutory violations, and in the case of the City of Philadelphia and then-Mayor Rizzo, Constitutional violations, this Court on November 5, 1976 entered an injunctive order, which provided in part:

(1) The defendants, Philadelphia Housing Authority, Redevelopment Authority for the City of Philadelphia, City of Philadelphia, Department of Housing and Urban Development, their officers, agents, and employees shall immediately take all necessary steps for the construction of the Whitman Park Townhouse Project as planned.

. . . . .

(4) All parties to this litigation are enjoined from taking any action which will interfere in any manner with the construction of the Whitman Park Townhouse Project. (E.D.Va.1976) 425 F.Supp. at 1029.

The judgment of this Court was affirmed by the Third Circuit, with one exception. Since this Court had found no statutory or Constitutional violations on the part of defendants-intervenors, the Whitman Area Improvement Council and its successor the Whitman Council, Inc., Alice Moore, Fred Druding, and all members of Whitman Area Improvement Council, and the Whitman Council, Inc., and its Officers, Agents, Servants, Representatives and Employers, and all other persons acting in concert with them or otherwise participating in their aid (hereinafter the Whitman Council^*), the Third Circuit reversed that part of this Court's Order which enjoined the Whitman Council from interfering in any manner with the construction of the townhouses. 564 F.2d at 152. The Third Circuit stated, however, that this Court might modify its Order in the event that the Whitman Council, at some time in the future, interfered with construction of the townhouses. Id. We have now reached that time; the Whitman Council's recent threats and attempts to interfere with construction of the townhouses require this Court to enter an Order enjoining the Whitman Council and all other persons acting in concert with them from interfering with the construction of the townhouses.

Upon the motion of the Resident Advisory Board plaintiffs, this Court on March 14, 1980 entered a temporary restraining order, to be effective on March 17, 1980, which barred the Whitman Council from interfering with the construction of the townhouses, which was scheduled to begin on March 18, 1980. The Court ordered a hearing on March 19, 1980 in connection with the motion for preliminary and permanent injunction. Specifically, the temporary restraining order barred the Whitman Council and those acting in concert with them from engaging in activities which would interfere in any way with the construction of the townhouses as ordered by this Court. In addition, the temporary restraining order, in recognition of defendants-intervenors' First Amendment rights to express their opposition to the construction of the townhouses, set forth a detailed plan for picketing and demonstrating, which barred all "picketing, demonstrations, rallies, protests or similar assemblies" within an area bounded by Delaware Avenue, Johnston Street, Third Street, and Ritner Street, except that picketing, demonstrations, etc. are permitted in a parking lot area adjacent to the site, and one informational picket is permitted at each of the ten gates in the fence surrounding the construction site.

On March 19, 20 and 21, this Court held hearings on plaintiffs' motion for a preliminary and permanent injunction. At the hearing, the Court granted the motion of A&R Development, Inc., the project developer, and Jolly Construction Co., the general contractor, to intervene as parties plaintiff. The intervenors, along with HUD, joined plaintiffs' motion for preliminary and permanent injunction. Plaintiffs and plaintiffs-intervenors seek an injunction similar to the temporary restraining order entered by this Court, except that they request that informational pickets not be permitted. The Whitman Council argues that the temporary restraining order should be lifted, and no injunction should be entered. For the reasons hereinafter set forth, the Court will enter an injunction similar in form to the temporary restraining order.

Plaintiffs and intervenors, in seeking injunctive relief, appear to suggest that the applicable standards are: (1) likelihood of success on the merits; (2) likelihood of irreparable harm; (3) possibility of harm to other interested persons; and (4) the public interest. Constructors Ass'n of Western Pennsylvania v. Kreps, 573 F.2d 811, 815 (3d Cir. 1978).

The Court has no difficulty in finding that all four of these criteria have been satisfied. Likelihood of success on the merits has long since been decided by this Court's Order to construct the townhouses, which has twice been affirmed by the Third Circuit, and as to which certiorari has twice been denied by the United States Supreme Court. See RAB v. Rizzo, 425 F.Supp. 987 (E.D.Pa.1976), aff'd in part, 546 F.2d 126 (3d Cir. 1977), cert. denied, 435 U.S. 908, 98 S.Ct. 1457, 55 L.Ed.2d 499 (1978); Sworob v. Harris, 451 F.Supp. 96 (E.D.Pa.1978), aff'd, 578 F.2d 1376, cert. denied, 439 U.S. 1089, 99 S.Ct. 871, 59 L.Ed.2d 55 (1979). As to irreparable harm, this Court, when it ordered the construction of the townhouses, determined that the plaintiffs would be irreparably injured by the defendants' failure to build the houses. Any further delay in construction further prolongs and exacerbates that injury. 429 F.Supp. at 226. We have also previously determined that the public interest will be best served by the "building of 120 townhouses on a vacant site in a city which is in dire need of decent housing for low-income families." 429 F.Supp. at 226. As to the final criterion, the possibility of harm to other interested persons, we fail to see how the construction of the townhouses as planned will bring harm to anyone in a city where there is an urgent need for housing. 429 F.Supp. at 226. In the context of possible harm to other interested persons which may result from the particular injunctive relief requested at this time, the Whitman Council raises First Amendment issues. As we discuss in detail below, the injunction which we will enter permits the Whitman Council to express their views to the full extent required by the First Amendment.

While these four criteria for a preliminary injunction are satisfied, we are not faced here with a conventional motion for a preliminary injunction seeking to preserve the status quo pending final decision on the merits. Here, preservation of the status quo means enforcement of this Court's Order for construction of the townhouses. Now that construction of the townhouses has commenced, we are faced with the situation discussed by the Third Circuit-the Whitman Council's interference with construction. The record before the Court clearly demonstrates that additional injunctive relief is now necessary to permit construction of the townhouses to proceed peacefully and safely.

The Court finds the testimony of Adam Bantner, Jolly Company's superintendent assigned to the Whitman site, to be credible. Bantner arrived at the construction site on the morning of January 4, 1980 to inspect the site and make preliminary plans for the placement of construction trailers and equipment. When Bantner attempted to leave the site his pick-up truck's exit was impeded by a vehicle driven by a local resident, which had pulled in front of him. He was approached first by two or three people and soon after by a total of six or eight Whitman residents. (Tr. 1-43, 44). After he had identified himself in response to their questioning, he was told by a Whitman resident that he was lucky "the men wasn't home because I would have been beaten up by that time." (Tr. 1-45). Bantner was told the development "would never be built" and that "if I put a trailer on the site they would have blowed it up." (Tr. 1-46).

Bantner then accompanied the Whitman residents into the home of Patricia Egger, on Porter Street, across from the Whitman site. Whitman residents in the house related the past history of continual harassment of the prior builder who was eventually driven off by local residents and who then went bankrupt, according to those addressing Bantner. (Tr. 1-49). "They told me Bantner they'd do the same thing to Jolly Co.." (Id.) Bantner was shown photos and newspaper reports of the demonstration in 1971 and told that the demonstrations forced a shut-down of construction and the withdrawal of the builder. He was also told that local residents would do the same thing to him and his company. (Tr. 1-49).

While in the Porter Street house, Bantner was called to...