Resident Advisory Bd. v. Rizzo, Civ. A. No. 71-1575.

• Decision Date: 04 March 1977
• Docket Number: Civ. A. No. 71-1575.
• Citation: 429 F. Supp. 222
• Parties: RESIDENT ADVISORY BOARD et al. v. Frank L. RIZZO et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

429 F. Supp. 222

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

Civ. A. No. 71-1575.

United States District Court, E. D. Pennsylvania.

March 4, 1977.

Jonathan M. Stein, Harold Berk, Community Legal Services, Philadelphia, Pa., George D. Gould, Janet F. Stotland, for plaintiff.

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

Sheldon L. Albert, City Solicitor, Julian C. Wessel, Asst. City Solicitor, Philadelphia, Pa., for City of Philadelphia.

MEMORANDUM AND ORDER

BRODERICK, District Judge.

In this action, the plaintiffs sought injunctive relief in connection with the termination of the construction of 120 townhouses. Planning for this low-income housing development commenced about twenty years ago. The first of many public hearings in connection with this development took place on June 4, 1956, when the Philadelphia Housing Authority ("PHA") invited the residents of the area to attend a hearing to consider a site on which low-income housing would be built. Soon thereafter the site was selected at Front and Oregon in South Philadelphia, which is now referred to as Whitman Park. After approval of the site by PHA, the Philadelphia City Planning Commission and the Department of Housing and Urban Development ("HUD"), condemnation, acquisition and demolition of the houses then located on the site took place in 1959 and 1960. In 1964, plans for a high-rise development on the site were opposed by the Whitman Area Improvement Council ("WAIC") and as a result of their opposition, the late Congressman William Barrett obtained federal legislation which restricted the development of the site to low-rise construction. It was then determined that townhouses would be constructed on the site and finally in 1969, PHA and the Redevelopment Authority for the City of Philadelphia ("RDA") advertised for developers, and a contract was awarded to Multicon Properties, Inc. and Multicon Construction Corporation ("Multicon"). The plan called for a "Turnkey III" development pursuant to which the tenants could become owners. After Multicon commenced construction in March, 1971, picket lines formed protesting construction of the townhouses. After a period of litigation in state court, the City of Philadelphia ("City") terminated the construction of the townhouses by paying Multicon $806,000 for the cancellation of its construction contract.

On November 5, 1976, this Court filed findings of fact and conclusions of law and entered a Judgment Order which directed PHA, RDA, the City and HUD to proceed immediately with all necessary steps for the construction of the 120 townhouses at Whitman Park. The Judgment Order also directed PHA to submit to the Court a plan for the racial composition of the Whitman Park Townhouses, together with a plan to further integrate all public housing within the City of Philadelphia. The Judgment Order enjoined all parties to the litigation from taking any action which would interfere in any manner with the construction of the townhouses.

On December 10, 1976, we denied all of the defendants' post-trial motions except that we did amend the findings of fact to a limited degree.

PHA, RDA, the City, HUD and WAIC have each filed a notice of appeal. The plaintiffs and Multicon have not appealed. PHA and the City have filed motions requesting a stay of proceedings to enforce the judgment and suspend the Court's injunction during the pendency of the appeal. These motions are presently before this Court.

The Court's Order was based upon findings of fact in connection with the following three separate legal theories:

(1) that governmental defendants have an obligation under Title VIII of the Civil Rights Act of 1968, 42 U.S.C. § 3601 et seq., ("the Fair Housing Act") to act affirmatively to promote integration in all federally assisted housing programs. The Court found that PHA, the City, RDA and HUD had failed to fulfill their obligations to promote integration in connection with Whitman Park, and thus violated the Fair Housing Act;

(2) that the Fair Housing Act prohibits governmental action which has a racially discriminatory effect unless the government is able to prove a compelling governmental interest which justified its action. The Court found that the actions of PHA, the City and RDA in terminating the construction of the townhouses had a racially discriminatory effect, and thus shifted the burden to the defendants to show a compelling governmental interest justifying their actions. The Court further found that PHA, the City and RDA failed to carry their burden to prove a compelling governmental interest which justified their action in terminating the construction of the townhouses. The Court found that this was an additional violation of the Fair Housing Act by PHA, the City and RDA;

(3) that actions taken with a racially discriminatory purpose or intent in connection with housing not only violate the constitution, but also violate the Civil Rights Statutes (42 U.S.C. §§ 1981, 1982, 2000d et seq., 3601 et seq.). The Court found that the City, in halting the construction of the townhouses and canceling the contract for their construction, acted with a racially discriminatory purpose and intent. The Court found this to be a third and separate legal basis upon which the City had violated its statutory and constitutional obligations in this matter.

Fed.R.Civ.P. 62(c) provides that:

When an appeal is taken from an interlocutory or final judgment granting, dissolving, or denying an injunction, the court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party.

It appears well settled by the case law that the party seeking the stay must show (1) that he will likely prevail on the merits of the appeal,¹ (2) that he will suffer irreparable injury if the stay is denied, (3) that other parties will not be substantially harmed by the stay, and (4) that the public interest will be served by granting the stay. Long v. Robinson, 432 F.2d 977, 979 (4 Cir. 1970). A request for a stay is addressed to the discretion of the court; and as with any exercise of discretion, the court must balance the equities presented by the particular set of facts. Evans v. Buchanan, 424 F.Supp. 875 (D.Del.1976).

1. Likelihood of Success on Appeal.

(a) Affirmative Duty.

In attempting to demonstrate a likelihood of success on appeal, PHA and the City contend that the Fair Housing Act does not impose upon them an obligation to act affirmatively to promote integration in federally funded housing programs. They argue that this obligation applies only to HUD. These defendants have not called our attention to any legal precedent which limits this affirmative obligation to HUD. In our Memorandum of November 5, 1976, we discussed the following cases, all of which hold that the obligation to act affirmatively to promote racial integration is not limited to HUD, but is equally applicable to other governmental agencies participating in federally assisted housing programs. Otero v. New York City Housing Authority, 484 F.2d 1122, 1133 (2d Cir. 1973) (New York City Housing Authority is under an obligation to act affirmatively to achieve integration in housing); Blackshear Res. Org. v. Housing Authority of City of Austin, 347 F.Supp. 1138, 1148 (W.D.Tex.1972) (Housing Authority of City of Austin is charged with the affirmative obligation to further the national housing policy expressed in the 1964 and 1968 Civil Rights Acts); and Banks v. Perk, 341 F.Supp. 1175, 1182 (N.D. Ohio 1972), aff'd in part, rev'd in part on other grounds, 473 F.2d 910 (6th Cir. 1973) (Cuyahoga Cleveland Metropolitan Housing Authority has an affirmative duty to integrate its housing projects).

(b) Racial Effect.

In connection with their contention that there is a likelihood of success on appeal, PHA and the City also argue that the Court "misinterpreted the meaning of Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), in determining that proof of a racially discriminatory effect is sufficient to show a violation of Title VIII of the Civil Rights Act the Fair Housing Act." This contention is clearly a "misinterpretation" of our interpretation of Washington. In Washington, the Supreme Court held that a racially discriminatory effect was not sufficient to establish a constitutional violation, but that plaintiffs must prove discriminatory purpose or intent on the part of the defendants. The Court made a distinction, however, in connection with liability in Title VII cases wherein proof of a racially discriminatory effect shifts the burden to the defendants to show a compelling interest as justification for its action. We held that the prima facie case concept applicable to cases brought pursuant to Title VII should be applied to violations of the Fair Housing Act. As heretofore pointed out, this Court found that the actions of PHA, the City and RDA in terminating the construction of the townhouses had a racially discriminatory effect which shifted the burden to the defendants to prove a compelling governmental...