Township of South Fayette v. Allegheny County Housing, Civil Action No. 98-1565.

• Decision Date: 17 November 1998
• Docket Number: Civil Action No. 98-1565.
• Citation: 27 F.Supp.2d 582
• Parties: TOWNSHIP OF SOUTH FAYETTE, Plaintiff, v. ALLEGHENY COUNTY HOUSING AUTHORITY, the United States Department of Housing and Urban Development, and its Secretary, Redevelopment Authority of Allegheny County and its Executive Director, the County of Allegheny, Cheryl Sanders, Cecile White, Cheryl Ulrich, Martha Surratt, Sara H. Williams, Kelly Vick, individually and on behalf of all others similarly situated, Christians for a Better Community, Inc., and the Task Force established by the Consent Decree Entered in Civil Action No. 88-1261, Sanders, et al. v. HUD et al., Defendants.
• Court: U.S. District Court — Western District of Pennsylvania

27 F.Supp.2d 582 TOWNSHIP OF SOUTH FAYETTE, Plaintiff,
v.
ALLEGHENY COUNTY HOUSING AUTHORITY, the United States Department of Housing and Urban Development, and its Secretary, Redevelopment Authority of Allegheny County and its Executive Director, the County of Allegheny, Cheryl Sanders, Cecile White, Cheryl Ulrich, Martha Surratt, Sara H. Williams, Kelly Vick, individually and on behalf of all others similarly situated, Christians for a Better Community, Inc., and the Task Force established by the Consent Decree Entered in Civil Action No. 88-1261, Sanders, et al. v. HUD et al., Defendants. Civil Action No. 98-1565. United States District Court, W.D. Pennsylvania. November 17, 1998.

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Romel L. Nicholas, Gaitens, Tucceri & Nicholas, Pittsburgh, PA, for Plaintiff.

Raymond N. Baum, Rose, Schmidt, Hasley & DiSalle, Pittsburgh, PA, Neva L. Stanger, Campbell Durrant & Beatty, P.C., Pittsburgh, PA, for Allegheny County Housing Authority.

Henry A. Azar, Jr., Michael Sitcov, Attorneys, Dept. of Justice, Civil Division, Washington, DC, Steven Cerny, Office of General Counsel, United States Department of Housing and Urban Development, Washington, D.C., for The United States Department of Housing and Urban Development.

Donald Driscoll, Community Justice Project, Pittsburgh, PA, for Sanders Plaintiff Class Members.

John W. Joyce, Allegheny County Housing Authority, Pittsburgh, PA, J. Deron Gabriel, Assistant County Solicitor, Allegheny County Law Department, Pittsburgh, PA, Robert N. Pierce, Counsel to Redevelopment Authority of Allegheny County, Pittsburgh, PA, for Redevelopment Authority of Allegheny County.

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OPINION

DIAMOND, District Judge.

The Township of South Fayette ("South Fayette") commenced this suit with a complaint seeking an injunction prohibiting the Allegheny County Housing Authority ("ACHA") from acquiring nine townhouses in South Fayette for use in a county-wide public housing program. ACHA is purchasing the townhouses as so-called "scattered-site" single-family public housing units pursuant to the mandates of a Consent Decree negotiated and entered into by The United States Department of Housing and Urban Development ("HUD"), ACHA, Allegheny County ("County"), and the Redevelopment Authority of Allegheny County, defendants, and a certified class of plaintiffs in settlement of the case of Sanders, et al. v. United States Department of Housing and Urban Development, et al., 872 F.Supp. 216 (W.D.Pa.1994) ("Sanders").

South Fayette originally advanced the allegations set forth in the instant complaint in the case of Allegheny County Housing Authority v. Township of South Fayette, Civil Action 98-1005 (W.D.Pa.), as a counterclaim which it filed along with a motion for a temporary restraining order or a preliminary injunction. On September 16, 1998, Judge Robert J. Cindrich of this court entered an order in that case severing the counterclaim and motion for injunctive relief from it and transferring them to this member of the court as a matter related to Sanders.

The following day this court held a status conference on the matter. At that conference the court noted that ACHA's impending acquisition of the South Fayette townhouses was in compliance with the provisions of the Sanders Decree and that since the injunction sought by South Fayette obviously would impede and otherwise adversely affect the rights and obligations of all of the parties to that Decree they were indispensable parties within the meaning of Rule 19, Fed.R.Civ.P., 28 U.S.C. (1998), in the South Fayette suit. Accordingly, an order was entered directing South Fayette to file a complaint as an independent civil action and to join as defendants all of the parties in the Sanders case. This has been done. Presently before the court are motions filed by ACHA, HUD and the Sanders class plaintiffs, all defendants in the instant case ("defendants"), to dismiss the complaint for lack of standing and/or failure to state a claim upon which relief can be granted, and plaintiff's motion for mediation/neutral evaluation and motion to hold action in abeyance.¹ For the reasons set forth below, the defendants' motions will be granted and plaintiff's motions will be denied.

In 1988, Cheryl Sanders and others as class action plaintiffs commenced an action at Civil Action 88-1261 against HUD, the County, ACHA, and the Redevelopment Authority of Allegheny County, seeking to redress the alleged establishment of de jure racial segregation in public and other federally assisted housing in Allegheny County and the alleged perpetuation of and failure to remediate that segregation in violation of the United States Constitution and statutes set forth in the complaint. A plaintiff class subsequently was certified consisting of "all black current residents in, or applicants for, public housing assisted by the ACHA and/or HUD, who have been and continue to be denied decent, affordable, and racially integrated public housing opportunities." See Opinion and Order, October 15, 1992, Document No. 187, in Civil Action 88-1261. As of December 1994, there were approximately 5,000 members of that class. Sanders, et al. v. United States Department of Housing and Urban Development, et al., 872 F.Supp. 216, 218 (W.D.Pa. 1994).

During the course of the litigation, HUD admitted that it had violated the Fair Housing Act, as amended, 42 U.S.C. § 3601, § 3608(e)(5), due to its past failure to administer local federal housing programs in a manner designed to achieve the goals of the

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Act and to eliminate the vestiges of discrimination in those housing programs. "In addition, in a Final Investigative Report resulting from a 1991 compliance review of the ACHA, HUD made findings that the ACHA was in violation of Title VI [of the Civil Rights Act of 1964] and the regulations thereunder for the creation and perpetration of racial segregation in its conventional public housing through its site selection, occupancy, waiting list, tenant selection and assignment, transfer, and other policies and practices, and that current and continuing practices perpetuated the intentional segregation practiced by the ACHA prior to 1965." Sanders, 872 F.Supp. at 225 (matter in brackets added). In January of 1994, HUD assembled a committee whose members had expertise in HUD's programs to develop a desegregation plan for Allegheny County. Id. at 218. That plan served as the basis for the defendants' negotiated settlement agreement. Id.

The settlement agreement created by the Sanders parties was presented to the court as a Consent Decree ("Decree"). After extensive notice by newspaper publication and approximately 9,455 direct mailings of the provisions of the Consent Decree and of the right to file timely objections thereto, a hearing was held on December 12, 1994. At that hearing only one person appeared to express disapproval of the proposed settlement Decree, and it was approved as the final resolution of the lawsuit. Id. at 217-23. The Decree was entered, inter alia, with the express approval of the Secretary of HUD ("Secretary") and after the issuance of Executive Order No. 12892 and an accompanying Memoranda of the President, 59 F.R. 2939 and 8513, reprinted at 42 U.S.C.A. § 3608.

Although the Decree is designed "to decrease the level of racial special separation in federally assisted housing programs and the private housing market in Allegheny County, and to increase desegregative housing choices and opportunities for class members and other low-income persons," its purposes are much broader, and include the improvement of "black communities in which a substantial number of federally subsidized units are sited ... [which] generally have undergone decline and disinvestment." Sanders, 872 F.Supp. at 218, 221. The Decree contains nine sections which address the various aspects of the County's federally assisted housing programs in which the discriminatory practices giving rise to the lawsuit and the admission and findings of liability occurred and sets forth directives and standards which are designed to implement and achieve the objectives of the Decree. Id. at 218-20. It also provides for the creation of a Task Force whose duties include the responsibility to coordinate the selection and approval of sites for new and replacement units of public housing and to assist HUD in fulfilling the obligations imposed on it under the Fair Housing Act with regard to the County's ongoing housing programs. Id. at 227-28.² The Decree specifically enjoins the County, ACHA and HUD "to implement the Decree and take all actions necessary to fulfill its obligations." Id. at 220. To insure compliance with the Decree, this court has retained jurisdiction for at least seven years. Id.

Section III of the Decree provides for the acquisition and siting of 100 units of public housing to replace the units demolished at a previous County public housing site known as Talbot Towers. It provides that these units "and other new or replacement units must be scattered-site housing" placed in certain defined areas of the County in such a way as to provide class members with housing opportunities outside of racially identifiable and low-income impacted communities. Id. at 218 & 228.

South Fayette's complaint, in effect, seeks to prevent the defendants from complying with these mandates. The complaint sets forth the bases for the relief it seeks in six causes of action: (Count I) deprivation of federal statutory rights; (Count II) violation of public policy — retaliation against plaintiff

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by ACHA; (Count III) violation of the Sanders Decree; (Count IV) violation of Pennsylvania's Sunshine law; (Count V) violation of 42 U.S.C. § 1983; and (Count VI) a request for attorneys' fees pursuant to 42 U.S.C. § 1988.

With the exception of Count II, these causes of action are in all material legal...