Walker v. US Dept. of Housing & Urban Dev.

• Citation: 734 F. Supp. 1272
• Decision Date: 22 September 1989
• Docket Number: No. CA 3-85-1210-R.,CA 3-85-1210-R.
• Parties: Debra WALKER, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, et al., Defendants.
• Court: U.S. District Court — Northern District of Texas

734 F. Supp. 1272

Debra WALKER, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, et al., Defendants.

No. CA 3-85-1210-R.

United States District Court, N.D. Texas, Dallas Division.

August 4, 1989.

Revised September 22, 1989.

COPYRIGHT MATERIAL OMITTED

Michael M. Daniel, Elizabeth K. Julian, and Kenneth L. Schorr, North Central Texas Legal Services, Inc., Dallas, Tex., for plaintiffs.

Arthur Goldberg, Leslie K. Shedlin, Thomas H. Peebles, and Jonathan Strong, Dept. of Justice, Civ. Div., Washington, D.C., Joseph G. Werner, Haynes & Boone, Marvin Collins, U.S. Atty., and Donald W. Hicks, Hill, Hicks & Collins, Dallas, Tex., for defendants.

MEMORANDUM OPINION

WALKER II: THE FROST AMENDMENT AND THE ANTI-DEMOLITION STATUTE

BUCHMEYER, District Judge.

This opinion concerns a Consent Decree entered in a class action involving racial discrimination in low-income public housing in Dallas.¹ Only one part of the Decree is at issue: the demolition of many of the vacant and uninhabitable housing units at DHA's West Dallas project² — and the "one-for-one" replacement of these units by HUD with § 8 certificates and vouchers. This opinion³ holds:

(i) the Frost Amendment,⁴ which purports to prohibit the use of federal funds for the demolition of any of the housing at West Dallas — as required by the Consent Decree approved by the Court in this case — is unconstitutional because it violates the principle of separation of powers;

(ii) the Anti-Demolition Statute,⁵ a general statute which prohibits the demolition of any public housing unless it is replaced by either § 8 certificates or other housing units which will be available for at least 15 years, is not unconstitutional;

(iii) the Anti-Demolition Statute does not apply to the demolition of 450 units at West Dallas which were effectively replaced by § 8 certificates before the date of this statute (Feb. 5, 1988);⁶

(iv) the Anti-Demolition Statute does not apply to those additional units at West Dallas that were effectively replaced by § 8 vouchers used in non-minority areas before Feb. 5, 1988, the date of this statute;

(v) the Anti-Demolition Statute does apply to all other housing at West Dallas — including those units that were not effectively replaced by § 8 vouchers before Feb. 8, 1988 — so the Consent Decree must be modified to prevent the demolition of these units unless they are replaced with housing or § 8 assistance which meets the requirements of the Anti-Demolition statute;⁷ and (vi) the Anti-Demolition Statute does apply to the housing at West Dallas which is being replaced by the 100 units of new low-rent public housing ("LRPH") being constructed at Country Creek, but it is undisputed that these 100 units do meet the requirements of § 1437p.⁸

This means that demolition at West Dallas may proceed — in accordance with this Court's approval of the Consent Decree — with respect to (i) the 550 housing units replaced by § 8 certificates and the 100 LRPH units, and (ii) those additional units that were effectively replaced by § 8 vouchers in use in non-minority areas before Feb. 8, 1988. It also means that no other housing may be demolished at West Dallas unless it is replaced with § 8 assistance or actual "dwelling units" which will be available for at least 15 years.

To show the reasons for these decisions, this opinion will discuss (i) the factual background, (ii) the applicable law, (iii) the Frost Amendment, (iv) the Anti-Demolition Statute, and (v) the Modification of the Consent Decree.

I. The Factual Background

The complete procedural history of this action — both before and after the plaintiffs, DHA and HUD settled the case with a Consent Decree approved by the Court on Jan. 20, 1987 — is detailed in the Walker I opinion. However, these additional facts are necessary to show the factual background for this opinion.

1. The Legacy of Deliberate Segregation

As discussed in Walker III — "Deliberate Segregation in Public Housing by DHA and by the City of Dallas" — the primary purpose of DHA's public housing program was to prevent blacks from moving into the white areas of this city. And, this policy of relentless, unbroken discrimination succeeded; for example, when this suit was filed in 1985:

(i) DHA had 12 public housing projects for low-income families that were 90-95% black;

(ii) DHA's other two family projects were 99% (Little Mexico) and 82% (Cedar Springs) Hispanic and black;

(iii) DHA had 6 low-income projects for the elderly which — because DHA intentionally assigned most elderly whites to "white projects" and most elderly blacks to "black projects" — were predominately one-race public housing projects.⁹

In addition, the § 8 Moderate Rehabilitation Program operated by DHA and the City of Dallas had a 90.6% black occupancy rate, with projects being located only in minority and low-income areas — and DHA's § 8 rent subsidy program was deliberately operated in a manner to prohibit most low-income black tenants from moving into non-minority areas with § 8 assistance. See the Walker III opinion, 734 F.Supp. 1289 at 1293-1309.

But the most inexcusable legacy of the deliberate discrimination in public housing by DHA and the City of Dallas was the 3500 unit West Dallas project. Constructed in the 1950s as a solution to "the Negro Housing Problem" — admittedly to prevent blacks from moving into white areas — West Dallas, by 1986, was a "publicly owned slum" and a "gigantic monument to segregation and neglect."¹⁰ As described in Walker III:

"Because of the appalling conditions at West Dallas — housing that was barely fit to live in; almost 1300 vacant units that were boarded up; severe problems with drug dealers, with other crimes, with transients, and with vandalism; health risks due to lead contamination; a bitter life with roaches and rats and rubbish; and little or no hope that these things would change — people in need were refusing to accept housing in the West Dallas project. In 1986, the rejection rates for George Loving, Edgar Ward and Elmer Scott ranged from 58% to 60%; and, this was true even though the DHA staff had been instructed to deny any housing assistance to a family that refused to take a unit in West Dallas.¹¹

"And, because of the same horrible conditions, a substantial number of the West Dallas tenants wanted to get out of the project. Evidence at the Dec. 12, 1986 fairness hearing established that as many as 85% of the tenants at West Dallas wanted to move out of the "publicly-owned slums" and that from 15-20% of the tenants left West Dallas each year...." (Walker III, pp. 1307-1308).

In January of 1987, there were 1,917 black families being subjected to these horrible conditions at West Dallas. And, it was not surprising that the remaining 1,583 units of the 3500 at West Dallas were vacant — that almost 1300 of these had been boarded up for at least ten years because they were not fit to be occupied by humans (Walker III, p. 1308) — and that no one was willing to make the massive investment (more than $65 million) that would be required just to restore the 3500 units at West Dallas to minimum standards of habitability.

2. The Settlement

After this suit was filed in 1985, a number of factors influenced each party's attitude toward settlement:

(i) HUD planned to require DHA to demolish at least 1300 vacant units at West Dallas. When this was done, HUD would cease the $1.2-1.5 million "operating subsidy" which it was paying to DHA on these vacant units. And, HUD was refusing to release $18 million to DHA for the renovation of some units at West Dallas unless DHA could submit a workable plan to restore both the project and the surrounding neighborhood.

(ii) The plaintiffs had no right, under the law, to stop the demolition of the 1300 West Dallas units — or to force HUD to replace them with other housing or § 8 assistance. And, renovation of the West Dallas units — even if money were available — would do nothing to give class members an opportunity for housing in a non-minority area or to improve the quality of the public housing in DHA's projects and § 8 programs.¹²

(iii) DHA was faced with a loss of from $1.2-1.5 million each year when the 1300 units at West Dallas were demolished. It was also — because of the undisputed facts concerning its deliberate segregation and discrimination in public housing — facing an obvious loss in this lawsuit. See Walker III, pp. 1293-1310.

It was under these circumstances that the parties — after prolonged and often-heated negotiations — reached a settlement. The Consent Decree contained significant remedial provisions that were designed: to stop DHA's practices of discrimination (e.g., tenant assignment & selection); to insure that § 8 participants would have needed assistance in locating housing of their choice throughout Dallas County, especially outside of minority areas (e.g., housing mobility services); to use the § 8 assistance to give low-income blacks a real opportunity to move into non-impacted areas (e.g., 120% fair market rent exception); to improve the quality of DHA's present and future housing (e.g., inspections and code enforcement); and to insure that § 8 tenants had the opportunity to move if their units did not comply with housing quality standards.¹³ And, as to the West Dallas project, the Decree provided:

(i) that from 800-900 units at West Dallas would be rehabilitated with the $18 million to be released by HUD;

(ii) that 1000 West Dallas units were to be demolished, but replaced by 100 units of new low-rent public housing and 900 § 8 certificates and vouchers;

(iii) that HUD could require the demolition of other units at West Dallas only by replacing them on a one-for-one basis with additional § 8 certificates or vouchers.

3. Approval of the Decree

On December 12, 1986 — after proper notice had been given to members of the putative class¹⁴ — a fairness hearing was held on the proposed settlement. Testimony and exhibits were...