UNITED STATES v. CITY OF PARMA, OHIO No. C73-439.
494 F.Supp. 1049 (1980)
UNITED STATES of America, Plaintiff, v. CITY OF PARMA, OHIO, Defendant.
United States District Court, N. D. Ohio, E. D.
June 5, 1980.
James R. Williams, U. S. Atty., Cleveland, Ohio, Drew S. Days, III, Asst. Atty. Gen., Robert J. Reinstein, Brian F. Heffernan, Michael L. Barrett, Theodore M. Shaw, Dept. of Justice, Washington, D. C., for plaintiff.
Fredric E. Kramer, Cleveland, Ohio, Robert R. Soltis, Parma, Ohio, for defendant.
Avery S. Friedman, Cleveland, Ohio, for amicus curiae.
BATTISTI, Chief Judge.
On April 27, 1973, the Civil Rights Division of the Department of Justice filed a complaint in this Court, alleging that the City of Parma has engaged in a pattern and practice of racial discrimination in housing in violation of The Fair Housing Act, Title VIII of the Civil Rights Act of 1968, 42 U.S.C. § 3601 et seq., and furthermore has denied rights granted by the Act to groups of persons.
The government's contention is that Parma, the largest suburb of Cleveland, with a population of more than 100,000, has had,
The government's evidence focuses on five series of actions taken by Parma officials between 1968 and 1975, all of which are claimed to have inhibited or prevented blacks from moving into Parma and thereby implemented a policy of racial exclusion. The challenged actions include: 1) Parma's refusal to enact a fair housing resolution which would have welcomed "all persons of goodwill" as residents; 2) Parma's consistent opposition to all forms of public and low-income housing; 3) Parma's rejection of a federally-subsidized low-income housing development; 4) Parma's refusal to submit an adequate housing assistance plan in connection with its application for Community Development Block Grant funds; and 5) Parma's passage and application of four land-use ordinances which impose height, parking and voter-approval limitations on housing developments, with the purpose and effect of severely restricting low-income housing opportunities in the City. These actions, individually and collectively, are alleged to have been taken with the purpose and the effect of perpetuating a segregated community.
Parma denies that its conduct had the purpose or effect of discriminating against blacks. The City's basic defense is that its virtually all-white character is the natural outcome of free choice in the housing market. The City claims that the marked absence of blacks is the result of choice influenced by associational preferences, historical and economic factors, and is not the result of discrimination in housing. The challenged actions are defended by the City on the ground that they advance legitimate municipal interests and are within the discretion normally afforded to the community.
The issues of racially discriminatory motivation, racially discriminatory effect, and Fair Housing Act violations depend on the evaluation of often merged legal and factual questions. The findings which follow are made from a review of all evidence and applicable law, including judicial notice of certain historical facts found in earlier court decisions or in sources whose accuracy cannot reasonably be questioned. See Rule 201(b), Fed.R.Evid. For organizational purposes, the findings are grouped into four major areas:
These findings follow a trial on the issue of liability at which twenty witnesses testified and the depositions of eleven witnesses and over 250 exhibits were admitted into evidence. The remedy issue was pretermitted for a subsequent proceeding if liability were found.
I. LEGAL STANDARDS FOR DETERMINING VIOLATIONS OF THE FAIR HOUSING ACT
The Fair Housing Act was enacted by Congress in 1968. Pub.L. No. 90-284, Title VIII, 82 Stat. 81 (codified at 42 U.S.C. §§ 3601 to 3631). Its purpose is "to provide, within constitutional limitations, for fair housing throughout the United States." 42 U.S.C. § 3601. Enacted pursuant to congressional power under the Thirteenth Amendment, the Act implements a policy of the highest priority — the replacement of ghettos with truly integrated living patterns. Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 211, 93 S.Ct. 364, 367, 34 L.Ed.2d 415 (1972). As the Supreme Court has noted, ". . . when racial discrimination herds men into ghettos and makes
Like Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Fair Housing Act was enacted to ensure the removal of artificial, arbitrary, and unnecessary barriers when the barriers operate invidiously to discriminate on the basis of impermissible characteristics. United States v. City of Black Jack, 508 F.2d 1179 (8th Cir. 1974), cert. denied, 422 U.S. 1042, 95 S.Ct. 2656, 45 L.Ed.2d 694 (1975); cf. Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). Congress designed it to prohibit "all forms of discrimination, sophisticated as well as simpleminded." Williams v. Matthews Co., 499 F.2d 819, 826 (8th Cir. 1974). The Act, therefore, is to be construed generously to ensure the prompt and effective elimination of all traces of discrimination within the housing field. Trafficante v. Metropolitan Life Ins. Co., supra 409 U.S. at 211-212, 93 S.Ct. at 367-368; see also Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99 S.Ct. 1601, 60 L.Ed.2d 66 (1979); Marr v. Rife, 503 F.2d 735 (6th Cir. 1974).
Section 804(a) of the Fair Housing Act prohibits all practices which make unavailable or deny housing to persons because of race, color, religion, sex or national origin. This broadly drafted section reaches every practice which has the effect of making housing more difficult to obtain on prohibited grounds. United States v. City of Parma, 1 EOHC § 13,616 (N.D.Ohio 1973); United States v. Youritan Constr. Corp., 370 F.Supp. 643 (N.D.Calif.1973), aff'd in relevant part, 509 F.2d 623 (9th Cir. 1975); Zuch v. Hussey, 394 F.Supp. 1028 (E.D. Mich.1975), aff'd in relevant part, 547 F.2d 1168 (6th Cir. 1977) (racial steering); Laufman v. Oakley Bldg. & Loan Co., 408 F.Supp. 489 (S.D.Ohio 1976) (mortgage red-lining); Dunn v. Midwestern Indemnity Co., 472 F.Supp. 1106 (S.D.Ohio 1979) (insurance red-lining); United States v. American Institute of Real Estate Appraisers, 442 F.Supp. 1072 (N.D.Ill.1977), appeal dismissed, 590 F.2d 242 (7th Cir. 1978) (discriminatory practices of appraisers). Even the discretion normally accorded to local zoning officials, see Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974), is to be curbed where "the clear result of such discretion is the separation of low-income Blacks from all White neighborhoods." Banks v. Perk, 341 F.Supp. 1175, 1180 (N.D.Ohio 1972), aff'd in part and rev'd in part without opinion, 473 F.2d 910 (6th Cir. 1973). Thus, municipal land use practices which make housing unavailable on a prohibited basis violate the Fair Housing Act. United States v. City of Parma, supra; Accord, e. g., Metropolitan Housing Development Corp. v. Village of Arlington Heights, 558 F.2d 1283 (7th Cir. 1977), cert. denied, 434 U.S. 1025, 98 S.Ct. 752, 54 L.Ed.2d 772 (1978) (Arlington Heights II); Resident Advisory Board v. Rizzo, 564 F.2d 126 (3rd Cir. 1977), cert. denied, 435 U.S. 908, 98 S.Ct. 1457, 55 L.Ed.2d 499 (1978); United States v. City of Black Jack, supra.
Violations of the Fair Housing Act can be established under two different theories. First, policies and practices which are motivated by racial discrimination violate the Act. See, e. g., United States v. West Peachtree Tenth Corp., 437 F.2d 221 (5th Cir. 1971); United States v. Northside Realty Associates, 474 F.2d 1164 (5th Cir. 1973), cert. denied, 424 U.S. 977, 96 S.Ct. 1483, 47 L.Ed.2d 747 (1976). Second, policies and practices may violate the Act if there is a showing of a racially discriminatory effect, even absent evidence of a racially discriminatory motive. United States v. City of Parma, 471 F.Supp. 453 (N.D.Ohio 1979); Arlington Heights II, supra; Resident Advisory Board v. Rizzo, supra; United States v. City of Black Jack, supra; Robinson v. 12 Lofts Realty, Inc., 610 F.2d 1032 (2d Cir. 1979); Bishop v. Pecsok, 431 F.Supp. 34 (N.D.Ohio 1976).
Standards covering the scope and nature of the evidence needed to prove a
Obviously, very persuasive evidence of racial intent can be found in the statements by decision-makers or their agents attesting to a policy of discrimination. See, e. g., Arlington Heights I, supra 429 U.S. at 268, 97 S.Ct. at 565; Resident Advisory Board v. Rizzo, supra at 144; United States v. Reddoch, 1 EOHC § 113,569 (S.D.Ala. 1972), aff'd, 467 F.2d 897 (5th Cir. 1972). But a finding of intent cannot be limited to instances where decision-makers articulate overtly bigoted opinions. Such would reward subtlety and camouflage at the expense of uncovering the underlying motivation. Even though the overt public expression of bigotry has become unfashionable, see Arlington Heights II, supra at 1289-1290, racial intent still can be shown by a series of decisions all of which have had a segregative effect and result in a cumulation of disadvantage inexplicable on grounds other than an invidious but unstated basis. See Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886).
To prove a violation of the Fair Housing Act under the "intent" standard which has emerged, it is not necessary that race be the sole or dominant motive behind the formulation and maintenance of policies and resulting actions. See Arlington Heights I, supra. The Fair Housing Act is violated if race was one of the motivating factors behind challenged conduct. Robinson v. 12 Lofts Realty, Inc., supra at 1042; United States v. Pelzer Realty Co., 484 F.2d 438, 443 (5th Cir. 1973), cert. denied, 416 U.S. 936, 94 S.Ct. 1935, 40 L.Ed.2d 286 (1974). Smith v. Sol D. Adler Realty Co., 436 F.2d 344, 349-350 (7th Cir. 1971). The rationale for not permitting race to be a "secondary" motivation has special force in the public sector. Political decisions inevitably involve the consideration and balancing of numerous competing interests. Indeed, it is the pyramiding of interests which often permits the forging of consensus. Many decisions would not be made, and actions not undertaken, if a particular motivation were absent. Permitting racial discrimination to be a "secondary" motivation would significantly raise the likelihood that decisions would be reached and actions undertaken on an impermissible basis.
Violations of the Fair Housing Act also can be established under the second theory of racially discriminatory effect. There is nothing in the language of Section 804(a), which prohibits any practice that makes unavailable or denies a dwelling to any person because of race, that requires proof
Congress employed broad language in Section 804(a) of the Fair Housing Act in order to ensure that the Act's purpose of providing for fair housing throughout the country would be achieved. To sanction conduct which perpetuates and reinforces discrimination in the housing market, absent some convincing justification, would nullify the congressional goal and thwart the strong national commitment to integrated housing.
Courts which have considered the "racially discriminatory effects" standard under the Fair Housing Act have not been uniform in defining what proof is required to establish a violation. Compare Arlington Heights II, supra, with Resident Advisory Board v. Rizzo, supra. Certainly a prima facie case requires proof that challenged policies and actions have a discriminatory effect. However, that alone may not always be sufficient to prove a violation. See Arlington Heights II, supra at 1290. A court must be sensitive to at least four other "crucial" factors: 1) the strength of the showing of discriminatory effect; 2) evidence of discriminatory intent; 3) the defendant's interest in taking action complained of; and 4) the nature of the remedy sought. Id. To rebut the prima facie case of segregative effect, the defendant must prove that its conduct is justified in theory and practice by a legitimate bona fide interest. Also, "the defendant must show that no alternative course of action could be adopted that would enable that interest to be served with less discriminatory impact." Resident Advisory Board v. Rizzo, supra at 149.
The government asserts that Parma has violated Sections 804(a) and 817 of the Fair Housing Act under both the "intent" standard and the "effects" standard. Because the government contends that Parma has adhered to a general policy of racial discrimination, the Court must consider the evidence as a whole, as well as in its component parts. The character and effect of a general policy is to be judged in its entirety, and not by dismembering it as if it consisted of unrelated parts. See Continental Ore Co. v. Union Carbide & Carbon Co., 370 U.S. 690, 699, 82 S.Ct. 1404, 1410, 8 L.Ed.2d 777 (1964); Keyes v. School District No. 1, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973); Davis v. School District of Pontiac, 443 F.2d 573, 576 (6th Cir. 1971), cert. denied, 404 U.S. 913, 92 S.Ct. 233, 30 L.Ed.2d 186 (1971); Detroit Police Officers' Ass'n v. Young, 608 F.2d 671 (6th Cir. 1979). Even intrinsically lawful acts may lose that character when they are constituent elements of an unlawful scheme. Continental Ore Co. v. Union Carbide & Carbon Co., supra 370 U.S. at 707, 82 S.Ct. at 1414.
II. RACIAL HOUSING SEGREGATION IN THE CLEVELAND METROPOLITAN AREA AND PARMA
An extreme condition of racial segregation exists in the Cleveland metropolitan area. See, e. g., this Court's earlier findings in Mahaley v. Cuyahoga Metropolitan Housing Authority, 355 F.Supp. 1257, 1259-60 (N.D.Ohio 1973), rev'd on other grounds, 500 F.2d 1087 (6th Cir. 1974), cert. denied, 419 U.S. 1108, 95 S.Ct. 781, 42 L.Ed.2d 805 (1974), and Banks v. Perk, 341 F.Supp. 1175, 1178 (N.D.Ohio 1972), aff'd in part, rev'd in part on other grounds, 473 F.2d 910 (6th Cir. 1973). As this Court has found previously,
These blacks residing within Cleveland were not dispersed generally. Rather they were concentrated on the east side of Cleveland (i. e. the area east of the Cuyahoga River) (Tr. 405). The relatively small number of blacks who had moved to the suburbs were themselves concentrated in two of the eastern suburbs.
An examination of 1970 census tracts also highlights the extreme degree of racial segregation in the Cleveland area. Blacks accounted for 16.1% of the Cleveland SMSA population (332,614 of 2,064,194). However, of the 440 census tracts in the Cleveland SMSA, 61 were over 80% black and 313 were over 95% white (Gov. Ex. 29). The predominantly black census tracts are all located on the east side of Cleveland (see census tract map in Gov. Ex. 107).
There is no post-1970 census data yet available, but the experts who testified at trial agree that this pattern of racial segregation has not changed substantially. Blacks continue to be concentrated primarily on the east side of Cleveland. While there has been an increased migration of blacks into some of the eastern suburbs, there has been little movement of blacks to the west side of Cleveland and almost none to the western suburbs (Tr. 153, 927).
Parma is the largest of Cleveland's suburbs and is located to the south of Cleveland's west side. It is a heavily working-class community with 37.6% of its employed residents being blue collar workers (see table 1 in Gov. Ex. 107). Parma's median family income and residential home value are slightly above the average for the Greater Cleveland area (id.). About 19% of Parma's residents live in apartments (Gov. Ex. 25).
Parma is also virtually all-white. In 1970, Parma had 100,216 residents, of whom only 50 were black (Gov. Ex. 7). Throughout its development and growth, very few blacks have lived in Parma, as is shown in the following table (Gov. Ex. 3, 4, 5, 6 and 7):
Year Population of Number of Black Parma Residents ---- ------------- --------------- 1930 13,890 4 1940 16,365 2 1950 28,897 17 1960 82,845 132 1970 100,216 50
As the preceding table indicates, Parma developed basically after the Second World War with its population more than tripling between 1950 and 1970. After World War II, many people who had lived in both the east and west sides of Cleveland moved to Parma and other Cleveland suburbs (Tr. 158, 711, 952). They took advantage of the low down-payment and mortgage policies of the Veterans Administration (VA) and the Federal Housing Administration (FHA) (Tr. 950-952), and found jobs as many employers left Cleveland for Parma and other suburbs (Gov. Ex. 23; Tr. 946-948). Although the growth of Parma has slowed in recent years, people continue to move there from the east and west sides of Cleveland (Gov. Ex. 28).
There is no accurate data available on the present racial composition of Parma. The Mayor of Parma, John Petruska, testified that he believed that Parma's total population has increased since 1970, and that there are now over 100 black families living in Parma (Tr. 1361). The Mayor's estimate of the number of black families may be exaggerated as there are only 36 black students in the Parma School District (Gov. Ex. 2), which includes the cities of Parma, Parma Heights and Seven Hills (Tr. 92). However, even if the Mayor's estimate is correct, the black population in Parma would still be well below 1%. Significantly, there are many more blacks who work in the Parma area than who live there. In 1977, large employers in the Parma area filing reports with the Equal Employment Opportunity Commission employed 1323 blacks, which was 6.3% of their total employment (Gov. Ex. 27).
Throughout this litigation, Parma's principal contention has been that the racial segregation in the Cleveland metropolitan area generally and in Parma specifically is not a result of racial discrimination. Parma claims that the housing segregation is a natural phenomenon caused by economics and by the free residential choice of blacks and whites to live with people of common backgrounds (ethnicity). For these reasons, Parma asserts that blacks do not want to live in Parma or indeed anywhere west of the Cuyahoga River, and, therefore, that none of Parma's actions could possibly have had the effect of excluding blacks.
The proposition that the Cleveland metropolitan area and Parma became racially segregated solely as a result of associational preferences and economics, and not because of racial discrimination, is refuted overwhelmingly by the evidence in this case. The proposition is also contrary to notorious and judicially-noticed facts about discrimination in the private and public housing markets.
A. The Dual Housing Market
The black ghetto on the east side of Cleveland was created and has been maintained by a series of systemic and pervasive practices of private and public discrimination. Recounting this history does not make pleasant reading, and a brief summary will suffice.
Racial segregation in the Cleveland area did not begin until the turn of this century (Tr. 151-153). In the late 1800's small black "settlements" had developed in the east and west sides of the city, and in the western suburbs as well (Tr. 910-911, 928-930). As blacks began to move to Cleveland in greater numbers in the early 1900's, a shortage of housing developed, and they were confined to an area on the east side called the "Roaring Third," or "Darkie Town." (Tr. 151-153). This area continued to expand as more blacks moved to Cleveland. The small west side enclaves, however, did not expand because additional blacks were not allowed to reside there (Tr. 931-932). In certain areas, blacks were not even allowed to walk (Tr. 151-153).
Following the Second World War, blacks moved to Cleveland in huge numbers, and the black population grew from over 80,000 in 1940 to over 280,000 by 1970 (Gov. Ex. 4,
Blacks were confined to the east side by a confluence of pervasive acts of public and private discrimination, the most significant of which are discussed below:
1. Until 1950, the consistent policy of the FHA and VA was to prevent blacks from buying homes in white neighborhoods (Gov. Ex. 9, pp. 43-47; Tr. 765, 938).
2. Following the FHA lead, racially restrictive covenants developed in the Cleveland area (Tr. 938). Although judicially unenforceable after 1948, they continued to be "viewed as a cloud on the title and excepted by title companies in their policies, at least until 1969." Reed v. Rhodes, supra at 789.
3. Yielding to public opposition, the Cuyahoga Metropolitan Housing Authority discriminated in its site and tenant selection practices and contributed to residential segregation in the Cleveland area. Banks v. Perk, supra.
4. Developers of federally subsidized housing generally were prevented from building (except in Cleveland's east side) because of opposition based on fears that this would bring blacks into white neighborhoods (Tr. 782-784, 790-794, 805).
5. Many real estate brokers dealing with housing in white areas refused to accept prospective black buyers (Tr. 259-260, 695-696). Indeed, until 1950, the Code of Ethics of the National Association of Real Estate Brokers stated: "A Realtor should never be instrumental in introducing into a neighborhood a character of property or occupancy, members of any race or nationality, or any
6. Banks, savings and loans, and insurance companies "red-lined" black and integrated neighborhoods, a practice which has not ceased in Cleveland (Tr. 158-159, 264, 700, 938-940, 948-949, 973-974; Gov. Ex. 9, pp. 25-26). And, until enjoined in 1977,
7. Beginning in the mid-1950's, there was an increase in the employment of blacks in the west side and in the western suburbs. Many of these people wanted to live close to their work (Tr. 268; see also Gov. Ex. 27). However, most were unable to find homes because of private refusals to sell and because of the inability of east side brokers to get listings in the west (Tr. 259-260, 264, 266, 268).
8. There has been, and to a large extent there still is, a dual market in the real estate business. Black realtors were denied membership on the real estate board (Tr. 267), access to multiple listing services (Tr. 729, 941-942), and cooperation with white realtors (Tr. 695-696). As a consequence, black brokers lacked knowledge of listings in the west side of the Cleveland metropolitan area and could not show black clients housing prospects there (Tr. 703). Furthermore, racial steering by brokers had been, and continues to be prevalent (Tr. 942).
9. In Parma and other western suburbs, white and black brokers were unable to find housing for black clients. When these brokers were able to discover listings, homeowners either refused to deal with them (Tr. 253-260) or refused to sell to their black clients (Tr. 259-264, 349-350). In Parma, as in other areas, there were rock-throwing incidents when a white family placed its home on the open market (Tr. 350). Other instances of hostility and physical abuse marked the reaction of residents of white areas when it was thought a black might move in (Tr. 349-352, 769-770, 943).
B. "Associational Preference" Hypothesis
In the face of overwhelming evidence of racial discrimination, Parma insists that the extreme racial segregation which exists in the Cleveland area actually is caused by the free associational preferences of whites and blacks. Under this theory, ethnicity
The underpinnings of this hypothesis are rooted in historical immigration and settlement
As its economic condition improved, each ethnic group moved out of the poorer ethnic enclaves and into the suburbs (Tr. 890-891, 901-907). Blacks began to settle in Cleveland after World War II in poor sections on the east side vacated by earlier ethnic immigrants (Tr. 883, 893-894). The economic condition of Cleveland's blacks has improved only recently, and blacks have now begun to move out to the eastern suburbs.
Parma's basic explanation for this migrational pattern depends on the concept of an "ethnic corridor", by which identifiable ethnic groups engage in unidirectional movement from the City to the suburbs, following established traffic arteries or roadways (Tr. 908). Development of these corridors is frustrated by natural barriers such as lakes and rivers, and man-made barriers such as industrial parks and freeways (Tr. 907-909). Utilizing the "corridor" concept, Parma argues that the black settlement and migration in the Cleveland area merely follows the same basic pattern that characterized the migration of other ethnic groups: from a heavy concentration in the inner city to the suburbs via the corridor (Tr. 901-904). Like whites, blacks prefer to be in the neighborhood of the same ethnic background (Tr. 915). The black corridor moves from the east side of Cleveland into East Cleveland, and is now moving towards other eastern suburbs such as Maple Heights and Bedford Heights (Tr. 890-893). Dr. Bonutti, Parma's expert, does not foresee any significant movement of blacks to the west side or to any of the western suburbs (Tr. 914-915) because the Cuyahoga River acts as a barrier to migration (Tr. 907).
The Court finds Parma's "associational preference" hypothesis, with the accompanying "corridor" theory, to be seriously flawed both in terms of logical inference and empirical validity. Perhaps most significantly, it is impossible to attribute racial segregation to the free associational choice of blacks when free choice has never existed. Dr. Bonutti admitted the existence of discrimination against blacks in the housing market and asserted that this simply reflected traditional hostility experienced by ethnic groups settling in a new area. At one point, Dr. Bonutti testified, "there is no question that there is a lot of discrimination. And it's not only discrimination against blacks. It's discrimination that is applicable to all groups that came here." (Tr. 932). Parma's expert further acknowledged the continued existence of many of the discriminatory practices in the housing market (Tr. 938-949; see pp. 1057-1059, supra), and admitted that this discrimination is a factor which influences existing residential patterns (Tr. 945-946). To suggest that associational preferences, rather than these practices of discrimination, are the major causes of segregation would not only be contrary to the evidence, but would also place this Court in conflict with the judgment of the State of Ohio (Gov. Ex. 9, p. 48), the judgment of Congress when it passed the Fair Housing Act, see e. g., 114 Cong.Rec. 2278 (1968) (statement of Senator Mondale); id. at 9563 (statement of Representative Celler), and the judgment of the Executive branch, see, e. g., Evans v. Buchanan, supra at 434 n.10 (citing statement of President Nixon).
While the evidence of housing discrimination against blacks is overwhelming, Parma suggests that this is a "natural" phenomenon because discrimination in housing also confronted earlier ethnic groups when they settled in the Cleveland area. This argument makes the erroneous assumption that ethnicity is equivalent to race. Nowhere is this supported in the record. Indeed, the attempt to categorize race as a subset of ethnicity ignores the one crucial characteristic that distinguishes blacks from white ethnics: color. In addition, the argument that discrimination is "natural" merely
The "associational preference" by hypothesis also fails because it is simply not plausible to believe that the supposed preference of blacks to live in black neighborhoods would subordinate people's desire to lead better lives. Dr. Bonutti admitted that blacks have the same aspirations as anyone else (Tr. 969). He also conceded that employment and housing conditions are much worse in the black east side ghetto than in the western suburbs (Tr. 946-950). And, as Dr. Campbell, the government's expert stated, and as the Court is well aware, there are areas in the ghetto which look like bombedout cities (Tr. 219-220).
Parma would have this Court believe that blacks prefer the life of the ghetto with its attendant filth, degradation, and crime to the life of suburbia because they do not wish to live in white or integrated neighborhoods. For substantiation, the City relies on testimony from Dr. Bonutti that is based on two studies, neither of which is of probative value.
Parma's "ethnic corridor" theory also does not explain why blacks only recently began moving to some of the eastern suburbs and have not even begun to move to the western suburbs. The explanation provided is that the "corridors" take time to develop, and are dependent on the improvement of economic conditions of the ethnic group. Blacks, who settled in Cleveland after white ethnic groups and who are relatively disadvantaged economically, are therefore last in time and money when it comes to the development of a corridor. Additionally, it is argued that a corridor will not develop unless the group is sizable.
However, at least two of the factors believed to contribute to the development of a corridor — size and time — have existed for many decades with respect to blacks. There were almost 35,000 blacks living in Cleveland in 1920 (Gov. Ex. 3) and over 85,000 blacks living in Cleveland before World War II (Gov. Ex. 4). If Parma's "corridor" theory were true, many of these early black settlers, their children and grandchildren would have moved to the suburbs, but as Dr. Bonutti admitted, they have not (Tr. 925).
Parma offers no convincing explanation as to why no black "corridors" have developed, or will develop, in the direction of the western suburbs. Dr. Bonutti claims that geographic barriers — the Cuyahoga River, freeways, industrial sites — inhibit the development of such corridors (Tr. 907). But while there is no question that geography influences residential development, the record is replete with evidence of white ethnic groups which have jumped spatially or have
Not only did a corridor not develop from Cleveland's east side to the west, but black enclaves in the west side did not expand either. In the late 1800's, several black neighborhoods had developed on Cleveland's west side and in the western suburbs (Tr. 928-930). Unlike white ethnic enclaves nearby, they never developed "corridors" to places like Parma (id.; see also Tr. 690-700). Parma claims that this occurred because the neighborhoods were "well-defined" (Tr. 929) and not very large. The reason for the lack of expansion of these well-defined, small neighborhoods becomes clear only when it is realized that blacks were not allowed to settle around them (Tr. 931-932). It is also clear from the record that there has been much greater resistance to black migration in the west than in the east (e. g., Tr. 782-784, 260-264).
Finally, Parma's "ethnic corridor" theory is greatly exaggerated. It is true that ethnic groups lived in "urban villages" before World War II, partly because of choice and partly because of discrimination (Tr. 141-142). However, as the government's expert, Dr. Campbell, explained, every ethnic group except blacks is now dispersed throughout the Cleveland metropolitan area (Tr. 147, 148, 164-168; see also Gov. Ex. 114B, 120). If white "ethnic corridors" exist, they cannot readily be found. Dr. Bonutti admitted on cross-examination that each white ethnic group is dispersed throughout the suburbs (Tr. 958-966).
Perhaps the most fundamental flaw in the "associational preference" theory, with its heavy reliance on the concept of "ethnicity", is the effort to assume that race is identical to ethnicity. The fact remains that blacks are distinguishable from other groups not on the basis of religion, language, or national origin, but rather on the basis of color. Parma's entire corridor theory assumes a monolithic ethnic black culture which in fact does not exist.
C. Parma's "Economics" Explanation
Parma's other explanation for racial segregation is economics. However, a review of census data for the Cleveland Metropolitan area reveals that economics has little to do with racial segregation. In 1970, Shaker Heights, the wealthiest suburb in the Cleveland area (see table in Gov. Ex. 107), had a median family income of $19,918 and a median home value of $41,814 (id.). Parma, on the other hand, had a median family income of $12,425 and a median home value of $24,079 (id.). But Parma is virtually all-white, while Shaker Heights is one of the only integrated suburbs in the Cleveland area. In 1970, less than 0.1% of Parma's residents were black, compared to 14.5% in Shaker Heights (id.).
A more systematic examination of the relationship of economics and other factors to residential segregation in the Cleveland area was done by Dr. John Kain, an expert witness for the government. Dr. Kain's
Dr. Kain found a dramatic difference between the actual racial distribution in the Cleveland area and the distribution that would have resulted from socio-economic factors. As noted earlier, 61 of the 440 census tracts in the Cleveland SMSA were over 80% black in 1970, and 313 census tracts were over 95% white (see p. 1056, supra; see also Tr. 408-409). However, if residential location were determined by income and household characteristics, no census tract would have been more than 60% black, only one tract would have been in the range 50-59% black, no tract would have been less than 5% black, and most census tracts would have been 10-20% black (Tr. 409; see Gov. Ex. 29C).
A comparison of the actual population of blacks in specific areas with the expected population in those areas if residential location were determined by income and household characteristics also was undertaken. The findings are summarized in the following table (Gov. Ex. 29F) ("a" means less than 0.1% blacks):
Actual and Predicted Percentage of Black Population in Selected Geographical Areas in Cleveland SMSA Percent Negro Area Actual PredictedBrook Park .3% 13.3% District I (Cleveland) 10.9 16.7 District II (Cleveland) 78.4 31.2 District III (Cleveland) 54.2 20.8 District IV (Cleveland) 1.4 20.2 District V (Cleveland) .2 15.8 District VI (Cleveland) 2.7 14.3 Cleveland Heights 2.5 11.4 East Cleveland 58.6 19.3 Euclid .4 18.1 Garfield Heights 4.3 13.7 Lakewood a 13.0 Maple Heights 2.0 13.6 North Olmstead a 12.6 Parma a 12.7 Parma Heights a 12.1 Shaker Heights 14.4 8.5 South Euclid .1 11.2 Balance of Cuyahoga 2.6 14.9 Mentor .5 13.7 Geauga County 1.2 13.8 Balance of Lake County 1.6 14.0 Medina County .8 14.7
This table shows that if income and household characteristics determined residential location, the Cleveland metropolitan area would be racially integrated with a substantial representation of blacks in every suburb. Parma itself would have been 12.7% black in 1970, or three hundred and twenty times the actual percentage (.04%).
Using the same techniques to examine the relationship of income and household characteristics on the residential distribution of white ethnic groups yielded results quite different from those observed for blacks (Tr. 413). Foreign stock individuals
Actual and Predicted Percentage of Foreign Stock Population in Selected Geographical Areas in Cleveland SMSA Percentage Foreign StockPredicted Area Actual Model I Model IIBrook Park 20.8% 19.0% 21.7% District I (Cleveland) 35.4 27.1 29.4 District II (Cleveland) 8.5 21.6 7.6 District III (Cleveland) 20.1 24.7 15.8 District IV (Cleveland) 27.8 24.0 29.2 District V (Cleveland) 37.5 27.0 31.6 District VI (Cleveland) 31.1 25.9 29.3 Cleveland Heights 36.7 28.8 31.6 East Cleveland 15.9 24.4 15.6 Euclid 33.1 27.2 30.9 Garfield Heights 35.9 26.7 29.6 Lakewood 28.3 27.9 31.8 Maple Heights 33.3 25.8 29.2 North Olmstead 24.0 22.6 25.8 Parma 36.1 25.7 29.3 Parma Heights 32.6 26.2 29.6 Shaker Heights 28.3 30.4 29.1 South Euclid 45.8 30.0 33.4 Balance of Cuyahoga 39.9 35.4 38.9 Mentor 14.4 22.8 26.1 Geauga County 20.4 21.7 24.7 Balance of Lake County 21.7 23.1 26.2 Medina County 12.8 22.9 26.5
Finally, Dr. Kain looked at Parma and compared the actual proportions of specific ethnic groups with the predicted proportions based on income and household characteristics. He found a very close relationship (Tr. 428-430):
Actual and Predicted Percentages of Specific Foreign Stock in Parma Group Actual PredictedPolish 5.4% 4.4% German 3.8 2.7 Czech 5.6 4.2 Austrian 2.7 2.4 Hungarian 2.0 2.6 Russian 3.1 2.3 Italian 3.7 5.0 Other 7.7 10.8
From these analyses, Dr. Kain concluded that income and household characteristics substantially explained the residential distribution of white ethnic groups, but not of blacks. Thus, another factor has operated to confine blacks, but not white ethnic groups, in certain areas. Based upon his extensive knowledge of housing markets and urban development, Dr. Kain concluded that this factor is racial discrimination (Tr. 432; Gov. Ex. 29).
Parma's attempt to rebut Dr. Kain's analysis involved three criticisms of Dr. Kain's study: first, that a different mathematical model should have been used (Tr. 1021-1023); second, that important variables were omitted from, and should have been used in, the study (Tr. 1028-1043); and third, that statistical tests showed that no conclusions could be drawn from Dr. Kain's observed results (Tr. 1044-1068). The Court finds the criticisms to be largely without factual foundation.
Dr. Ramsey, Parma's expert on econometric models, testified solely on the validity of Dr. Kain's models. However, the alternative mathematical model urged by Dr. Ramsey, to his knowledge, has never been used in any published works in the area of demographic patterns by race or ethnicity (Tr. 1076). In fact, Dr. Ramsey has never studied housing segregation, demographic patterns, or any other subject dealing with
The important variables which Dr. Ramsey believes were erroneously omitted from Dr. Kain's study — wealth, religion, occupation, lifestyle (Tr. 1034) — were omitted either because the variables had not been employed and tested before, because the data did not exist (Tr. 1090-1091, 1099-1103), or because the variable is not truly significant (Tr. 1091-1098).
Finally, the statistical tests performed by Dr. Ramsey in an effort to discredit Dr. Kain's study were sometimes misleading or meaningless (Tr. 1105-1112). Some of the tests were performed erroneously (Tr. 1117-1124), and other tests were conducted without confirming necessary statistical assumptions (Tr. 1130-1132). Finally, some of Dr. Ramsey's statistical tests produced results consistent with Dr. Kain's conclusions (Tr. 1136-1144, 1125-1126).
Based on the record, the Court finds that the racial segregation in the Cleveland area cannot be attributed to either associational preferences or economics. The Court finds that a principal cause of the housing segregation is the past and present discrimination suffered by blacks.
III. PARMA'S RACIALLY EXCLUSIONARY POLICIES AND PRACTICES
As a result of the long-standing practices of private and public discrimination described earlier, the western part of the Cleveland metropolitan area is considered by most black people as hostile territory and a place where blacks simply are not welcome (Tr. 210, 225-226, 268, 269, 344-345, 351, 702, 709-711; Stokes dep. 49-50). Parma shares this image of exclusion based on race; it has the reputation in the black community, among realtors and brokers generally, and with Parma residents of being a city reserved for whites and opposed to racial integration.
Parma's exclusionary image differs in degree from other western suburbs. Parma is generally considered to be the suburb that is most hostile to blacks (Tr. 269, 345; Stokes dep. 48), and is a "symbol" of resistance to integration (Tr. 345).
A city's reputation can be created and affected by the publicly-expressed attitudes of its leadership. Racial statements made by Parma's elected officials contributed to the perpetuation and intensification of this image of exclusion based on race (Tr. 269, 711; Stokes dep. 41-46). It takes little education or sensitivity to perceive the attitude reflected by City Council President Kuczma when he stated "I do not want Negroes in the City of Parma." (Gov. Ex. 118). His remarks were made at a public meeting and were publicized widely in the press and television. They served to reinforce Parma's reputation as a place that "did not want blacks to live there . ."
Mayor Petruska's remarks were not limited to public meetings in Parma. His nationally televised statement that Parma was integrated when it had three black families (Gov. Ex. 30, p. 14) was widely known and is still remembered for the racial attitude it expressed.
These statements by the Mayor and the City Council President contributed to the creation of Parma's image of racial exclusion. Parma's racially exclusionary image is a perpetuating cause of housing segregation. One of the factors that influences most people in considering where to live is whether they will be welcome (Tr. 701, 769-771). People desire to avoid hostile situations, and the perception that they are not wanted in a certain area is a real deterrent to their moving into the area (id.). Because Parma is viewed as a place where blacks are not welcome, blacks are prevented from moving there and the City's virtually all-white composition is maintained.
It is against this backdrop that the government's pattern and practice suit challenges five specific actions or series of actions taken by Parma:
It is these actions, individually and collectively, which the government alleges violated the Fair Housing Act. The government contends that these actions denied rights to groups of people and amounted to a pattern and practice of resistance to the full enjoyment of rights granted by the Act.
A. REFUSAL TO ENACT THE FAIR HOUSING RESOLUTION
In the late 1960's, a number of communities in the Cleveland area considered proposals to demonstrate local support for the recently passed state and federal fair housing laws (Tr. 84, 1304). At least one local fair housing organization actively promoted the area-wide passage of fair housing resolutions by proposing specific language for adoption by the various government bodies (Tr. 1303; Sands dep. 45-46). A number of communities, including Parma's neighbor, Parma Heights, adopted such resolutions (Tr. 1416-1417). Some, including Parma, did not (Tr. 1304; Sands dep. 30-31; Gov. Ex. 31; Petruska dep. 36).
A proposed fair housing resolution was put before the Parma City Council in mid-1968 by John F. Sands, a Councilman-at-large and the Majority Leader. Part of its language stated simply that ". . . all persons of good will have been and are welcome in the city of Parma by this Council . . ." (Gov. Ex. 122; Sands dep. 33)
Despite the manifestly weak language of the proposed open housing resolution, it aroused tremendous controversy and opposition. Mr. Sands was deluged with about a hundred letters and telephone calls during the three-week period after he introduced it (Sands dep. 18-19). Most of those who contacted Mr. Sands were opposed to the resolution, and many said he should not even talk about open housing because there was no need for it (id. at 22-23). A significant number openly expressed opposition to integration (id. at 23). Mr. Sands described the intensity of opposition to his proposal as "unbelievable" (id. at 18-19).
Mayor Petruska opposed the resolution publicly. In a meeting with clergy, Council members and Parma citizens concerning the proposal,
On September 3, 1968, the Parma City Council rejected the proposed fair housing resolution by a vote of 7 to 5 (Gov. Ex. 31; Sands dep. 14). No evidence indicates that anyone voted against the resolution because it was too weak.
However, the Court finds that the resolution was defeated, at least in part, because of opposition to racial integration. The resolution nowhere mentioned race or discrimination; nor could it have been understood as more than a good-will gesture. As Mr. Sands described the resolution, it was simply an "open declaration of an attitude" (Sands dep. 142).
The Court rejects Mayor Petruska's testimony that he opposed the resolution solely because state law, which he is sworn to uphold, already provided for fair housing (Tr. 1322-1323; Petruska dep. 33). Mayor Petruska, a lawyer, surely understood the difference between a resolution and a law. The fair housing resolution was not legally binding; rather, it simply espoused an attitude. Mayor Petruska's testimony also is refuted by his contemporaneous public statements, and by his later public comments on this subject. In late 1970 or early 1971, for example, Mayor Petruska addressed a meeting of the Parma Jaycees Wives (Tr. 101-103). At the meeting, a former president of that organization, who was a Parma resident for seven years, asked Mr. Petruska: "What about open housing in Parma?" (Tr. 103-104). The Mayor responded: "You don't have to worry about that. Our neighborhoods will stay the same" (Tr. 104). When the questioner then informed the Mayor that she supported open housing, the Mayor indicated that there already was open housing in Parma because three or four black families lived there (Tr. 104, 116).
The Court rejects Parma's contention that its refusal to enact the fair housing resolution had no segregative effect. Certainly passage of the resolution alone would not have insured that increasing numbers of blacks would choose Parma as the place to reside.
B. PARMA'S REJECTION OF PUBLIC AND LOW INCOME HOUSING
1. Conventional Public Housing
a. Public Housing Segregation in Cuyahoga County
With one minor exception, all of the conventional public housing in Cuyahoga County is administered by the Cuyahoga Metropolitan Housing Authority (CMHA) (Gov. Ex. 22, p. l.). A vastly disproportionate
Virtually all conventional public housing in Cuyahoga County has been built by CMHA inside of Cleveland (Tr. 627; see Gov. Ex. 107), and most of it is located in neighborhoods that are heavily black. In 1971, 20 of the 27 public housing projects were located on the east side of Cleveland in areas of heavy black concentration (Gov. Ex. 107). In 1978, this was true for 20 of 35 projects, and 5 of the 15 projects on the west side were in the few areas of heavy minority concentration (id.).
There is a huge shortage of public housing in Cuyahoga County. The total tenant population in public housing in 1973 was about 25,000 people (Gov. Ex. 20, p. 10). Another approximately 48,000 families are eligible for public housing in Cuyahoga County (Gov. Ex. 22). This severe shortage of public housing is directly attributable in part to the exclusion of public housing from the suburbs and its concentration in minority neighborhoods within Cleveland. There are two reasons why this situation developed.
First, within Cleveland itself, CMHA followed policies which had the effect of segregating public housing on the east side until this Court's 1972 decision in Banks v. Perk, 341 F.Supp. 1175 (N.D.Ohio 1972), aff'd in part, rev'd in part on other grounds, 473 F.2d 910 (6th Cir. 1973). Before the Stokes administration took office in the late 1960's, most of the public housing in Cleveland was in black neighborhoods on the east side. When Stokes tried to have projects constructed on the west side without a guarantee that blacks would be excluded (Stokes dep. 95), the Cleveland City Council opposed a cooperation agreement between the City and CMHA (id. at 82). The Council finally signed a cooperation agreement when HUD threatened to cut off federal funds (id. at 89). But once the guarantee of all-white public housing in white neighborhoods was removed, there was vehement opposition to public housing by west side residents (id. at 36). In 1971, a new city administration yielded to this public resistance and revoked building permits for new projects on the west side. Banks v. Perk, supra at 1178-1179. Finding that both the city and CMHA had violated the Constitution and the Fair Housing Act, this Court ordered the city to grant necessary building permits, and ordered CMHA to cease building projects in minority neighborhoods until public housing within Cleveland was desegregated. Id. at 1180, 1185-1186.
Following the order in Banks v. Perk, public housing segregation within Cleveland, although still pronounced, has lessened substantially. In the projects located in white neighborhoods on the west side, about 40% of the non-elderly occupants are black.
A second reason for the substantial shortage of public housing in the Cleveland metropolitan area is that CMHA was prevented from building public housing in the suburbs.
b. Parma's Need for and Refusal to Allow Public Housing
Like other suburbs of Cleveland, Parma has a genuine need for public housing. Well over 1,000 families living in Parma are eligible to live in public housing (Gov. Ex. 45; Petruska dep. Ex. 24, Table 15). According to one study, over 1300 families who reside in the City of Cleveland and are eligible for public housing have expressed an interest in moving to Parma (Gov. Ex. 22).
Officials of the City of Parma have long been aware of the need for public housing in their city. But instead of acknowledging the need for such housing, they have chosen to deny that the need exists and have ignored all invitations to participate in conventional public housing programs and other low-income housing programs.
In early 1969, the director of CMHA contacted public officials in Parma and advised them of various public housing opportunities that were available (Gov. Ex. 39). Parma officials were also sent a copy of CMHA's annual report for 1969 which advised them of the City's need for low-income housing and invited Parma's participation in CMHA's programs (Gov. Ex. 38). On July 25, 1969, the Chairman of CMHA sent a letter to all mayors in the Cleveland area inviting them to arrange discussions of CMHA's programs (Gov. Ex. 40). Mayor Petruska was among those who received the letter, but he did not respond to it (Tr. 627-629).
On March 18, 1971, Robert Fitzgerald, then director of CMHA, attended a meeting of the Cuyahoga County Mayors and City Managers' Executive Board at which Mayor Petruska was present. Fitzgerald addressed the group on the various programs offered by CMHA and explained that they could enter into a cooperation agreement with CMHA and make housing available to residents of their own area. Mayor Petruska expressed his desire that the suburbs have representation and input into CMHA decisions. After the meeting, however, no one from Parma contacted either CMHA or Fitzgerald (Tr. 640).
Although Mayor Petruska did not communicate with anyone at CMHA regarding the programs which had been discussed, he did not withhold his views from Parma officials or the public. Petruska made it clear that he had no interest in any form of public housing, and he expressly instructed the City Council not to enter into a cooperation agreement with CMHA (Tr. 1392). In an August 14, 1972 newspaper interview, Mayor Petruska responded to a report showing a need for public housing in Parma by stating that "Parma does not need and does not want" any low-income housing and vowing that he would fight any attempts by CMHA to build housing in Parma (Petruska dep. Ex. 17).
2. Other Low Income Housing Programs
In addition to conventional public housing, many other kinds of low-income housing have been available to Parma, but the City has consistently refused to participate in such housing. In 1972, for example, CMHA was following a policy of diffusing public housing through the home ownership, or "turnkey" program (Tr. 667). On March 10, 1972, CMHA's director wrote to all mayors of communities of Cuyahoga County, including Mayor Petruska, informing them of the turnkey program and asking for the opportunity to discuss it with them (Gov. Ex. 43). Mayor Petruska did not respond to CMHA's letter (Tr. 664). On June 19, 1972, Mayor Petruska was sent another letter by CMHA's director in which the turnkey program was explained in detail (Gov. Ex. 44), and again there was no response (Tr. 642).
Parma's conduct with regard to "Section 8" housing also illustrates a consistent policy of resistance to all forms of low-income housing. Under Section 8,
There is no need for a metropolitan housing authority to be involved directly with the Section 8 program (Tr. 605). It is also not necessary that a municipality enter into a cooperation agreement with a housing authority in order to have regular Section 8 housing placed within a community (Tr. 605). A private developer can simply respond to a HUD notification and rehabilitate units without CMHA or municipal involvement (Tr. 571). However, although specific municipal approval is not required in order to build Section 8 projects (other than a building permit), a municipality does play an important role. It can help the program by assisting project sponsors in finding acceptable sites, bringing needed utilities to the site, and using community development funds for access roads or road improvement (Tr. 569). A community also can facilitate Section 8 programs by setting up places where residents can apply for certification, and by informing them about the program and how much they can save if they are eligible. Additionally, a municipality can inform landlords about Section 8 housing and its advantages (Tr. 654-655). While these actions are all voluntary, they may be crucial to the successful development of Section 8 low-income housing.
Although the Section 8 program does not require the involvement of a metropolitan housing authority, CMHA can get involved in the management of Section 8 projects as it has in Berea, Cleveland Heights and University Circle. CMHA can also issue certificates to qualified individuals to live in private apartments which have met HUD standards (Tr. 647-648).
The Section 8 program has worked well in the Cleveland metropolitan area. It has provided housing for approximately 3400 families, half of whom live outside of Cleveland (Tr. 651). The program also has offered substantial opportunities for low-income blacks. In 1979, 2015 of the 3389 families with Section 8 certificates were black (Gov. Ex. 17). Of the 765 families on the 1979 waiting list, 684 were black (Gov. Ex. 15), and of the 313 elderly households on the waiting list, 109 were black (id.). The Section 8 program also has resulted in the movement of some blacks to the western suburbs. A newly constructed project in Berea, for example, has 108 units of which 37 are occupied by blacks. Six of these black families were from Berea, while 32 moved to the project from the east side of Cleveland (Tr. 655-656).
Parma has refused to participate in the Section 8 program. Mayor Petruska testified that he may have received literature regarding the program from CMHA and that he did not recall his or anyone else from Parma's attending any meetings on the matter (Petruska dep. 280-281). The record clearly establishes that Mayor Petruska received information about Section 8 housing. On August 13, 1975, CMHA sent a letter to Petruska notifying him of a meeting about the Section 8 program to be held on August 28, 1975 (Gov. Ex. 116). An identical letter was sent to John Zielinski, the President of Parma's City Council (Gov. Ex. 117). At that meeting, it was explained how municipalities could help in marketing the Section 8 program and how their residents
3. The Effect and Intent of Parma's Actions
Parma's opposition to any form of public or low-income housing has had an acute and foreseeable segregative effect on this virtually all-white city. Statistics reveal that most public housing and Section 8 tenants in the Cleveland metropolitan area are black; the same is true of the waiting lists for those programs. Moreover, in instances when public housing or Section 8 projects have been built in white neighborhoods on the west side or in the western suburbs, blacks frequently have taken advantage of those opportunities and have moved into those projects. For the thousands of other black families eligible for such housing and living in Cleveland who want to move to the suburbs
In the face of this segregative effect, and against the needs of many of Parma's own residents for public or low-income housing, Parma offers only one explanation in this record for its actions. This is Mayor Petruska's explanation that public housing means CMHA involvement, and because he considers CMHA to be incompetent he will have nothing to do with public housing. The Court rejects this explanation as not supported by the evidence. Rather, the Court finds that the desire to keep Parma all-white has become a primary factor behind the City's decision to prevent any public or low-income housing from being built.
The evidence clearly demonstrates that Parma has opposed all public and low-income housing, irrespective of CMHA's involvement. In 1971, when Mayor Petruska was running for re-election, he explained in an open letter to the community that he supported a controversial housing project because it was composed of "luxury" apartments.
At trial and in his deposition, Mayor Petruska testified that his strong public opposition to all public and low-income housing resulted only from the fact that no proposal for such housing was before the City at those times (Tr. 1374-1376; Petruska dep. 200). At best, with respect to the 1971 campaign statements, this assertion is incorrect since the Parmatown Woods proposal was under active consideration. See pp. 1081-1083, infra. When asked under oath about his position on public or low-income housing, Mayor Petruska refused to take a position, saying, "I can't make any general statements in my business." (Petruska dep. 276). Mayor Petruska's position for this litigation, and the position he represented to the people of his community in
Mayor Petruska testified that the statements contained in his campaign literature relative to public housing were made in the belief that the CMHA would be involved in the management of the property (Tr. 1336).
At trial, Mayor Petruska testified that CMHA operations had been "going downhill year by year" (Tr. 1358), an observation he allegedly formed by driving by different projects in Cleveland, and reading newspaper articles and other reports about CMHA (Tr. 1332-1333).
Finally, the Court notes that Mayor Petruska equates public and low-income housing with housing for blacks. In 1971, when asked how he or any other city official as a Christian could exclude people of any race or color from residing in Parma, he immediately responded (Petruska dep. Ex. 13):
Apparently, in Mayor Petruska's eyes, Cleveland's problems and low-income housing both translated into blacks, since his response to a question of race was answered in such terms. On another occasion when he was asked about low-income families, Mayor Petruska began to talk in terms of "blacks" (Petruska dep. 106). The evidence shows that Parma's mayor equates low-income housing with blacks.
This Court does not believe that low-income housing should be equated to blacks. Blacks have not been the only victims of Parma's opposition to low-income housing. Unfortunately, many of Parma's own residents have suffered by being unable to obtain needed housing because of the City's fear that blacks would be among the beneficiaries.
C. THE DENIAL OF A BUILDING PERMIT FOR PARMATOWN WOODS
In 1971, there was a genuine need for low-income and senior citizen housing in the City of Parma. In response to this need, a local developer, Forest City Enterprises, proposed to construct a federally subsidized multi-family housing project. This project was to be named Parmatown Woods. Up to this time, there never had been any federally subsidized low-income housing in Parma. (Tr. 573, 1252; Reinke dep. 201). Applications for the building permits needed for construction of Parmatown Woods were submitted by Forest City Enterprises to Parma officials. After review, the building permits were denied, allegedly because of non-compliance with Parma's land-use ordinances. The Court finds that an important reason for the denial of the building permits was the fear that blacks would live in Parmatown Woods. This fear resulted in deviations from standard procedure and substantive norms and rendered impracticable, if not impossible, compliance with the land-use ordinances.
1. The Background of Parmatown Woods
The crucial question concerning the rejection of the building permits for Parmatown Woods is whether Parma's stated reasons for rejecting them are the true reasons or whether they mask a racially discriminatory motive. In addressing this question, the rejection of Parmatown Woods cannot be considered in a vacuum. To discover whether procedural and substantive norms were followed, the treatment accorded Parmatown Woods must be compared with the treatment Parma gave to other multi-family high-rise housing projects which were proposed and built around the same time.
No building construction can commence in Parma before issuance of a written permit by the Building Commissioner in accordance with the Zoning Code or other city regulations. Parma, Oh., Planning and Zoning Code § 1125.02. The permit is not to be issued until plans for the development are complete and accepted (Vittardi dep. 43). According to Parma's Building Commissioner, Jerry Vittardi, the plans which are submitted for "just about every apartment development" are incomplete, and therefore it is necessary for the developer to submit revisions (id.) Under local regulations, a permit is not to be issued until these revisions have been accepted. However, the treatment accorded four apartment complexes — Midtown Apartments, Regency Towers, Parmatown Gardens, Parmatown Towers — indicates that the formal regulations and procedures regarding the issuance of building permits in the City of Parma have not always been adhered to.
On April 4, 1968, an application for a building permit for Midtown Apartments, a three building four-story apartment complex, was filed with Parma. After this filing, the City's Engineering Department determined that the plans for the complex were deficient because revisions needed to be made in the plans for the Building "C" of this Apartment complex. In spite of the fact that the original plans were deficient, a building permit was issued on September 2, 1968 which permitted construction to begin on Buildings "A" and "B" of the complex. Approval of Building "C", and therefore approval of the total plan as originally submitted, was withheld subject to revision of the plan and subsequent approval by the City. A resubmission of the plans in 1969
Another example of the failure of Parma to follow formal rules and regulations is evident in the treatment accorded Regency Towers. In 1971, an application for a building permit for Regency Towers, another multi-family high-rise apartment complex, was submitted to Parma's Building Department at a time when there was the threat of a moratorium on water connections by the City of Cleveland (Reinke dep. 32, 123). In order to cooperate with the builders of the project complex and allow them to obtain a water connection prior to the moratorium's taking effect, the Parma Building Commissioner issued a building permit before the full set of plans were reviewed for compliance with the City's ordinances (Reinke dep. 123-124). Thus, the developer was issued a permit which allowed construction to begin before Parma approved the plans for the building,
The Parmatown Gardens development is a third example of Parma's failure to follow formal procedures for the issuance of a building permit. Plans for the construction of Parmatown Gardens were submitted by Forest City Enterprises in 1972, and after review by city officials, a building permit was issued (Reinke dep. 126). After this building permit was issued, Forest City was allowed to revise its plans for Parmatown Gardens by changing the allocation of bedroom units in the complex (Reinke dep. 126-127). The plans for Parmatown Gardens therefore were reviewed twice — once before the building permit was issued and once after it was issued (id. at 127). Even though revisions in plans are supposed to be made before a building permit is issued (Vittardi dep. 43), a revision of the Parmatown Gardens plans was allowed because Parma felt it would "cooperate" with Forest City, which said it had made a mistake in drawing up its plans for the complex (Reinke dep. 127).
The fourth example demonstrating the flexibility of the process for issuing building permits is the Parmatown Towers development, a 10-story multi-family housing complex which was built on land immediately adjacent to the land on which the proposed Parmatown Woods complex was to be built (Tr. 585-586; Reinke dep. 32).
In 1969, Forest City again attempted to obtain rezoning for its proposed site and this time was successful (Tr. 1176; Dunning dep. 42-43). Objections to rezoning, such as possible traffic and sewer problems (Sands dep. 55), were overcome when Forest City touted the new apartments as "luxury" apartments (Dunning dep. 42-43, 49, 156-157; Sands dep. 56-60). Some members of the City Council who had opposed rezoning in 1968 now voted in favor of it because of an "impressive blue booklet" distributed by Forest City which emphasized the luxury nature of the apartments (Dunning dep. 156-167). The Council now approved rezoning for the site of this six-story luxury apartment complex by a vote of 11 to 1 (Sands dep. 54). Mayor Petruska, who had vetoed rezoning the year before, explained why he changed his position and now favored construction of the Parmatown Towers development (Gov. Ex. 75, p. 2). The apartments, he wrote:
It was the "luxury" nature of the apartment complex that prompted Mayor Petruska not to veto the rezoning change.
The next official action concerning Parmatown Towers occurred on March 9, 1971. The portion of Ames Road on which Parmatown Towers was to front had not been dedicated to the City (Tr. 1196, 1233). On March 9, Forest City appeared before the Parma Planning Commission to dedicate Ames Road to the City and asked the Planning Commission to accept the dedication for record purposes only (Tr. 1194; Gov. Ex. 77, 82). Forest City explained that the Cleveland Water Department had threatened a ban on future water hook-ups (Tr. 1194) and that before the Water Department would review the plans for Parmatown Towers, the street dedication had to be accepted for record purposes (Tr. 1195). Later that day, the Parma Planning Commission accepted the dedication of that portion of Ames Road on which Parmatown Towers is located for record purposes only, "with no further obligation on the City until such time as Council actually accepts proper dedication" (Tr. 1193, 1235-1236; Reinke dep. 174; Gov. Ex. 77).
The significance of this very limited dedication acceptance by the Planning Commission for "record purposes only" is understood when one looks at Parma's Planning and Zoning Code (Gov. Ex. 123). Parma ordinances § 1101.06(d) and § 1101.08 provide that a building permit can be issued by the City of Parma only if the street on which the proposed development is located is dedicated to the City and officially accepted by the City Council (Tr. 1234-1235). These ordinances also make it clear that only official acceptance of a dedicated street by the Parma City Council obligates the city to provide services such as rubbish and garbage pickup and maintenance of street improvements. The Planning Commission of Parma realized these facts on March 9, 1971, when it accepted the Parmatown Towers dedication for record purposes only. This is evidenced by the Planning Commission's disclaimer of provision of city services and its recognition of the future necessity for "proper" Councilmanic dedication (Gov. Ex. 77). In light of the foregoing, this Court finds that the March 9, 1971 acceptance of the Ames Road dedication by the Parma Planning Commission was not the official Councilmanic acceptance of a street dedication envisioned by the Planning and Zoning Code, and that such acceptance
Actions taken by the City of Parma with regard to Parmatown Towers subsequent to the March 9, 1971 meeting of the Planning Commission indicate that Parma did not consider such things as street dedication ordinances and normal city administrative procedure to be barriers to construction. Rather, the manner in which the Parmatown Towers matter was handled indicated that Parma would bend the rules when it wished to cooperate with a developer of a non-subsidized multi-family housing project. In spite of the fact that the Parmatown Towers plans submitted by Forest City to the City of Parma were not finally approved until a short time after the Planning Commission meeting of May 11, 1971
The issuance of a building permit for Parmatown Towers in March 1971, some two months before approval of plans by the Planning Commission was contrary to stated administrative procedures. As noted above, a building permit could not be issued under the local ordinances until the developer's plans had been approved by the City Engineer. Issuance of the Parmatown Towers building permit prior to plan approval was done by Parma "in the spirit of cooperation" with Forest City. The developer was thereby allowed to avoid a threatened ban on water hook-ups which never occurred (Reinke dep. 123, 127-128).
The "spirit of cooperation" which had led Parma to ignore standard procedure in the issuance of the building permit carried the City one step further. The building permit for Parmatown Towers was issued in violation of Planning and Zoning Code § 1101.06 which requires the dedication and Councilmanic acceptance of a street before a building permit for development on that street can be issued (Gov. Ex. 123; Tr. 1234; Wojas dep. 56). The official Councilmanic acceptance of the March 9, 1971 dedication of Ames Road, which was the legal prerequisite for the issuance of the Parmatown Towers building permit, did not occur until August 14, 1972 (Gov. Ex. 78; Tr. 1236-1237) almost a year and a half after the building permit was actually issued.
Based upon the manner in which the building permits were issued for construction of the Midtown Apartments, Regency Towers, Parmatown Gardens and Parmatown Towers multi-family development, the Court finds that Parma's official regulations and standard procedures are applied flexibly. These four examples demonstrate that when Parma officials are in favor of a proposed development, they try to accommodate the developer, and will issue building permits even when not authorized under stated procedures and local ordinances.
2. Racial Opposition to Parmatown Woods
In 1971, Forest City Enterprises submitted plans for the construction of a multi-family housing development to be called
In February 1971, the Planning Commission of Parma discussed the possibility of securing senior citizen housing (Gov. Ex. 47). Following this meeting, Donna Smallwood, the Senior Citizen Director of Parma, undertook a survey of the housing needs of senior citizens. The results showed that most people who responded were interested in senior citizen housing, and that interest was not limited to residents of Parma (Smallwood dep. 16-17). At another Planning Commission meeting, held in March 1971, Frank Celeste of National Housing Consultants made a presentation relative to senior citizen housing for Parma (Tr. 1286).
Around the time that Parma officials were considering additional senior citizen housing, Forest City was studying the feasibility of constructing Parmatown Woods. One of the studies pointed out that the proposed complex would be "orientated to the elderly" (Gov. Ex. 53).
Parmatown Woods first began taking some type of tangible form in the spring of 1971, when Forest City submitted to the Cleveland Office of HUD an application for a proposed Section 236 apartment complex to be located in Parma, Ohio (Tr. 576; Gov. Ex. 53). The original application of Forest City proposed the construction of a complex containing 408 units (Tr. 574, 576), but the number of units was later cut back to 201 units due to lack of HUD funds. At the time, John Kasulaitis, Chief of Housing Programs at the Cleveland HUD office, was employed by HUD as a multi-family appraiser, and he personally appraised the proposed Parmatown Woods site. Mr. Kasulaitis, who had appraised over 100 other multi-family sites, believed that "as multi-family sites go, [the Parmatown Woods site] was one of the best you could ever want to have, and the location was excellent because it was close to all kinds of amenities." (Tr. 559).
Parmatown Woods, also referred to as Parmatown Towers Phase II, was presented formally to the City of Parma on June 22, 1971 at a meeting of the Parma Planning Commission (Gov. Ex. 59). At that meeting, William Warren of Forest City explained that Parmatown Woods would consist of two ten-story buildings containing 408 units, which were to be financed under the HUD Section 236 program. Warren also told the Planning Commission what the rents for the proposed project would be and that such rents were set by the federal government and could not be raised (id.). After Warren told the Planning Commission that Forest City would request a variance from the 2½ parking spaces per apartment unit required by Parma down to one
On July 6, 1971, Forest City made a presentation concerning Parmatown Woods to members of the City Council of Parma (Kopchak dep. 52-54). At that meeting, Sam Miller of Forest City stated that the proposed 10-story senior citizen complex would be similar in appearance to Parmatown Towers and would be for Parma senior citizens (id.), but that the rents in the proposed complex would be lower than those in Parmatown Towers because Parmatown Woods was to be built under Section 236 (id. at 55). Parma officials understood at that time that the rents in Parmatown Woods would be lower because the federal government was paying part of the interest on the building mortgage (Petruska dep. 89; Smallwood dep. 37-38), and that a Section 236 project could have a federal rent supplement program within it, and that this also would lower rents (Dunning dep. 118).
On July 13, 1971, a second meeting of the Parma Planning Commission was held to consider the Parmatown Woods proposal. A representative of the Regional Planning Commission made the report on Parmatown Woods which had been requested at the June 22, 1971 Planning Commission meeting (Gov. Ex. 60). The report indicated, among other things, that the proposed development was in a desirable location and was within the appropriate zoning district (Gov. Ex. 60; Petruska dep. 88). After the Regional Planning representative made his presentation, Parma officials began to express a concern about the type of residents expected to live in the Parmatown Woods complex. Evelyn Kopchak, a Parma City Councilwoman, questioned whether residents of Parma could be given a preference in renting the units in the proposed development (Gov. Ex. 60; Kuczma dep. 96; Kopchak dep. 68-71). She was advised by William Warren of Forest City that HUD had been contacted, and that an official had assured him that Parma applications could be processed "without violating the restrictions." (Gov. Ex. 60). Donna Smallwood then suggested the possibility of setting up a type of "screening committee" for applicants at Parmatown Woods (id.; Kuczma dep. 96; Smallwood dep. 44), to which Mr. Warren responded that Forest City would be agreeable (Gov. Ex. 60). Ms. Kopchak was concerned about whether the proposed development could be sold to CMHA by Forest City (id.; Kuczma dep. 96; Kopchak dep. 68-71; Petruska dep. 93). While Parma officials such as Kopchak and Smallwood voiced their concern over the prospective residents of Parmatown Woods, an underlying fear of Parma — the fear that black persons might be moving into Parmatown Woods — was brought out into the open by the two highest ranking elected officials in the City of Parma — the President of the City Council and the Mayor of Parma.
Kenneth Kuczma was the President of the Parma City Council in 1971 (Kuczma dep. 10-12) and was in attendance at the July 13, 1971 meeting (Gov. Ex. 60). Kuczma took the floor and stated, "I do not want Negroes in the City of Parma" (emphasis added) (Gov. Ex. 118; Tr. 66-67). Kuczma felt that this was the real issue at stake in the construction of Parmatown Woods and his statement was meant to force everyone to face the issue realistically (Gov. Ex. 118; Tr. 66-67). Kuczma stated that the people of Parma, all of whom he considered as his constituents (Kuczma dep. 58), were fearful of Negroes coming into the City and that he himself had that fear (Kuczma dep. 100; Kuczma dep. Ex. 3, p. 13). He thought that many residents of Parma had moved there from the east side of Cleveland where they had suffered considerable losses in the sale of their real estate due to an influx of Negroes (Gov. Ex. 118; Tr. 66-67). He also felt that a movement of Negroes into low-cost housing in Parma would cause the community to deteriorate (Kuczma dep. 117-119).
Immediately after Kuczma stated that he did not want Negroes in Parma, and after
At the end of the July 13, 1971 meeting, the Parma Planning Commission "approved" Parmatown Woods, but with two qualifications. First, the Parma Zoning Board of Appeals was to give special attention to possible problems such as the need for additional elevators, full security requirements and a change in laundry facilities. Second, and most critical, the Zoning Board was told that any parking variance should carry with it a restriction "strictly for senior citizens" and any other use of the buildings would cause the variance to lapse (Gov. Ex. 60).
By early October, Parma officials had learned some disquieting news. Councilwoman Kopchak, who had contacted local HUD officials, wrote a letter to Mayor Petruska on October 6, 1971 advising him not only that Parmatown Woods would be low-income housing, but also that it would be open "to anyone who meets the income limitation imposed by the Federal Government and cannot be limited strictly to Senior Citizens." She also noted that "[i]t is doubtful that any stipulations can be imposed whereby the apartments would be limited to Parma residents." (Gov. Ex. 62).
Around this time, Mayor Petruska also was notified of a letter from HUD Secretary George Romney which described Parmatown Woods as a project with two sections—one for elderly and the other for low and moderate income families. In response to these two letters, Mayor Petruska urgently sent telegrams to Secretary Romney and other officials requesting all information dealing with applications for low-income housing within Parma, "so my citizens may have an honest and detailed report of something that greatly concerns them." (Def. Ex. X).
Against this background of intense concern over low-income housing and the possibility of blacks moving into Parma, Parma officials decided to meet with HUD officials to discuss the Section 236 program and Parmatown Woods. Council members Mary Dunning and Kenneth Kuczma tried to set up a meeting with HUD (Tr. 274, 1288-1289; Dunning dep. 64). In response to a call from a Parma official, Charles Lucas, then the Deputy Director for the Cleveland insuring office of HUD (Tr. 269), invited representatives from Parma to a meeting in his office on October 20, 1971 to discuss the Section 236 program (Tr. 274). Before the meeting, however, several Parma officials called him (id.). One call was from Council member Mary Dunning, who wanted information about the Section 236 program and Forest City's involvement in it. Lucas, a black, invited her to attend the October 20th meeting. Dunning said: "Do you know that we don't want blacks in Parma?" Avoiding a response, Lucas said "Don't we?" and Dunning hung up (Tr. 275).
The October 20, 1971 meeting was attended by Lucas, two other HUD officials and eleven Parma officials (including 9 of 11 City Council members) (Gov. Ex. 66). Lucas was asked questions about the Section 236 program, but most of the questions
On October 21, 1971, the day following the meeting of Parma officials with Charles Lucas at his office at HUD, John Kasulaitis, a HUD official who had been in attendance at that meeting (Gov. Ex. 66), attended a meeting sponsored by the Catholic Ladies Guild of St. Anthony's Parish of Parma in St. Anthony's Parish Hall (Tr. 539-540). At this meeting, Kasulaitis made a presentation concerning Section 236 and other HUD housing subsidy programs and explained the differences between them and public housing (Tr. 540-541). After his presentation to about 130-140 people, including several Parma City Council members in attendance, Kasulaitis was asked questions from the floor concerning in particular whether the HUD subsidy programs were public housing (Tr. 541). He was asked whether Parmatown Woods could become public housing and whether persons from the "East Side" of Cleveland could become tenants there. After the meeting, Kasulaitis was approached by persons who expressed opposition to the Parmatown Woods project because they expected blacks to become residents (Tr. 540-546).
The testimony of Parma officials further underscores the concern of people in Parma about who would be the residents of Parmatown Woods and more specifically, about whether these residents would be black. Stanley Wojas, City Councilman, received phone calls from his constituents asking if Parmatown Woods was to be for Parma residents only (Wojas dep. 84). He also was asked questions about the race of those persons who were expected to reside in Parmatown Woods (id. at 83). John Sands, City Councilman, was asked by other City Council members whether "public housing tenants" could live in Parmatown Woods (Sands dep. 65, 74) and was also asked by Parma citizens whether he was bringing black people into Parma through Parmatown Woods (id. at 103). Donna Smallwood, Parma's Senior Citizen Director, testified that some senior citizens asked her whether blacks would be moving into the Parmatown Woods project (Smallwood dep. 153-157). As Smallwood put it, people were concerned about whether the building would be "open to anyone" (id. at 158).
The evidence leaves no doubt that the prospective racial make-up of Parmatown Woods was of concern to Parma public officials and their constituents. The fear that blacks might reside in Parma was a decisive source of opposition to Parmatown Woods.
3. The Rejection of Parmatown Woods
The fear of blacks moving into Parma was, of course, not the sole source of opposition to Parmatown Woods. The relationship that existed between Parma officials and Forest City could not be characterized as overly friendly. A credibility crisis had erupted when Forest City unilaterally changed its plans for Parmatown Towers from a six-story to a ten-story building (Dunning dep. Ex. 1). There also was some
In addition, considerable confusion developed among Parma officials concerning the nature and purpose of the Parmatown Woods project. HUD Secretary Romney, in a letter to Representative Minshall which was forwarded to Mayor Petruska, described Parmatown Woods as an Operation Breakthrough project consisting of two phases: elderly and low or moderate-income families (Def. Ex. W). However, the Regional Planning Commission, in a letter addressed to Mayor Petruska and dated October 7, 1971, stated that except for the use of the same construction techniques "there is no relationship between Operation Breakthrough and the senior citizen project, Parmatown Woods." (Def. Ex. Y). Two other letters from HUD officials to Mayor Petruska, dated October 14, and October 29, attempted to clarify the expression "Operation Breakthrough" and the status of Parmatown Woods (Def. Ex. AA, AC). Adding to the confusion was an ongoing political campaign in the fall of 1971, in which certain of Parma's public officials believed their stands on specific issues, including the Parmatown Woods proposal, were being misstated by their opponents and the press (Petruska dep. 199-200).
During this period of confusion and controversy, the plans for Parmatown Woods were reviewed by personnel at HUD and by local officials in the Parma Building and Engineering Departments. In the summer of 1971, a project analysis was submitted to HUD. On August 5, 1971, HUD officials appraising the project requested assurances from Forest City that 201 parking spaces would be acceptable to the City of Parma. HUD also requested assurances that a proposed street from the project site to Day Drive would be dedicated to and accepted by Parma (Def. Ex. T). HUD discussed numerous other problems with Forest City.
Parma officials received the initial applications for building permits for Parmatown Woods on July 30, 1971. The building permit applications were for two ten-story buildings containing 201 units each (Gov. Ex. 64, 65; Vittardi dep. 49, 51). In late August, Forest City was advised by the Safety Director of Parma that the building permits could not be issued because the plans were incomplete (Gov. Ex. 55).
In early October 1971, Forest City submitted revised building plans for Parmatown Woods to Parma officials. The plans were given to Russell Reinke, the City Engineer, for his review and criticism (Reinke dep. 113). Reinke began to review the Parmatown Woods plans but stopped when he came across a problem with the street on which the proposed development was to be built: a street had not been dedicated to the City and accepted by the City Council as required by the Planning and Zoning Code (Tr. 1254-1255; Reinke dep. 114-115). It is Reinke's normal procedure to stop reviewing any plans as soon as he comes across a major deficiency. In the Parmatown Woods plans, that major deficiency was the lack of a street dedication and acceptance (id.). After his review of the plans stopped, Reinke returned the plans to the Building Commissioner and informed him that he could not proceed with the engineering review because of the street dedication problem (Gov. Ex. 56; Tr. 1218, 1342). On the next day, October 7, 1971, the Building Commissioner notified Forest City of the street dedication problem and of the fact that processing of the Parmatown Woods proposal could not be completed
Forest City resubmitted applications for building permits for Parmatown Woods on October 26, 1971. With the exception of a change from 201 to 202 units in each building, the applications were identical to the ones submitted by Forest City on July 30, 1971 (Gov. Ex. 57, 58). The second set of plans was given to the City Engineer to review (Tr. 1219-1221). It was during this review that the Engineer, Mr. Reinke, departed from his normal plan review procedure (Tr. 1256-1257). Apparently not satisfied that the street dedication problem was sufficient grounds for rejection of the proposal, Mr. Reinke conducted a far more detailed review of the plans and uncovered several problems with the parking specifications (Reinke dep. 114, 117-118; Tr. 1220-1221; Gov. Ex. 67).
On October 28, 1971, Reinke again returned the Parmatown Woods plans to the Building Commissioner, notified him of deficiencies in the plans, and recommended that the plans be rejected and returned to the developer along with the building permit application (Tr. 1220-1221; Reinke dep. 117-118; Gov. Ex. 67). On November 3, 1971, the Building Commissioner did just that (Gov. Ex. 70; Tr. 1223; Vittardi dep. 63). After its second set of plans was rejected by Parma, Forest City ceased submitting revisions (Reinke dep. 175), and there was no further communication between Forest City and Parma concerning Parmatown Woods (Tr. 1222, 1346; Reinke dep. 175).
Parma contends that the decision to reject the Parmatown Woods proposal was made in accordance with normal procedures and regulations. Parma thus claims that the building permits would have been denied even if the intense opposition to the housing development on racial grounds had not been present. The Court finds otherwise because Parma officials, reacting to racial considerations, departed from their normal practices in determining to reject the Parmatown Woods building permit application.
The testimony of Messrs. Reinke and Vittardi reveal a system where, in the words of Mr. Reinke, things are done both "sometimes formally [and] sometimes informally" (Reinke dep. 111). Building permits, for example, were denied orally as well as in writing (Vittardi dep. 54). If building plans were acceptable, the applicant also was notified either verbally or in writing (Vittardi dep. 37). Daily contact with developers was carried out on an informal basis with no set routine to be followed (Vittardi dep. 45; Reinke dep. 189-190). At times, Parma initiated these contacts with developers and, at other times, developers called the City (Reinke dep. 106-107, 189-190; Vittardi dep. 45, 113). Parma's treatment of projects like the Regency Towers, Midtown Apartments, Parmatown Towers and Parmatown Gardens is further evidence that the City did not strictly adhere to formal procedures and regulations. Instead, a "spirit of cooperation" (Reinke dep. 123) existed between the City's building department and the local developers.
Against this background of informality and cooperation, the manner in which the Parmatown Woods proposal was handled was an aberration. Certainly Forest City's submission of incomplete plans was not a rare occurrence. Incomplete plans had been submitted for practically every apartment development in Parma, and officials had permitted revisions to be made (Vittardi dep. 43). In the case of Parmatown Woods, however, no officials of the Building Department bothered to contact Forest City about problems with the plans or to see if the problems could be worked out informally. In the past, Mr. Reinke had called Forest City when problems had arisen with one of its developments (Reinke dep. 44), and he knew many persons at Forest City (id. at 43). Jerry Vittardi also had previously contacted Forest City personnel on many occasions (Vittardi dep. 47-48). Reinke even had gone to the Forest City offices for a conference on at least one occasion, and he had meetings with Forest City officials in his office ten or more times (Reinke dep. 45). These facts lead the Court to find
This does not mean that there were not problems with the plans that were submitted to the City. But instead of trying to work the problems out informally, or taking other actions to accommodate the developer, Parma officials simply seized on the problems and rejected the proposal outright. This action is totally inconsistent with other instances that have been noted where building permits were issued for high-rise apartments before complete plans had been submitted or approved by city officials. See pp. 1074-1077, supra. Indeed, it would be difficult to imagine a more clear-cut case of disparate treatment than the denial of the building permits for Parmatown Woods on the one hand, and the granting of a building permit for Parmatown Towers on the other. Each incident occurred in 1971, and each involved the same developer. And, in each case, the streets on which the projects were to front had not been dedicated and accepted. Despite the similarities, the necessary building permit was issued for Parmatown Towers and was denied for Parmatown Woods. The distinguishing factor between the projects is that Parmatown Woods was not a "luxury" development, and consequently its construction might have been enabled blacks to come into Parma.
The City of Parma argues that Russell Reinke, the City Engineer, and Jerry Vittardi, the Building Commissioner, are merely mechanical processors of building permit applications. It is claimed that their function in the building review process consists of strictly adhering to written guidelines, and that they have no authority to modify any of the requirements of the ordinances of Parma.
4. The Effects of the Rejection
In 1972, after its proposal for Parmatown Woods was rejected by Parma, Forest City contacted HUD and succeeded in building a Section 236 project in adjacent Parma Heights (Tr. 296; Def. Ex. BA). Called Independence Place, this new apartment complex is basically the same project that was rejected by Parma and is located approximately 100 yards from the proposed Parmatown Woods site (Tr. 602, 617-618, 1418-1419).
The lack of blacks in Independence Place can be attributed to several factors. One factor which may have affected black occupancy at Independence Place was the manner in which the Affirmative Marketing Plan was implemented by Forest City for that building.
At one point, HUD criticized Forest City for not complying with HUD affirmative marketing guidelines and regulations and for not meeting equal opportunity goals (Def. Ex. AJ). Because HUD judges affirmative marketing plans in terms of efforts instead of results (Tr. 285), it must be assumed that HUD's criticism of Forest City occurred as a result of a lack of effort on the part of Forest City in carrying out its affirmative marketing obligations. In light of this, the Court finds that the lack of blacks at Independence Place is due in part to a lack of effort by Forest City in attempting to attract minority tenants to the Parma Heights project.
A second factor affecting minority occupancy at Independence Place is Parma's racially exclusionary image as an all-white city hostile to blacks and those who might bring blacks to Parma. Paul Cassidy, who has been the Mayor of Parma Heights for the past 22 years (Tr. 1410), testified at trial about the confusion that exists in Cuyahoga County as to the difference between Parma and Parma Heights (Tr. 1427-1428). The extent of this confusion was made clear to him during his 1968 campaign for Commissioner of Cuyahoga County. During the campaign, Cassidy spoke to many groups of blacks, and even though he would be introduced at these meetings as being from Parma Heights, people thought that he was from Parma. This was made clear to Mayor Cassidy because he repeatedly was questioned about the positions which Parma had taken (Tr. 1427-1429). From blacks especially, he learned that Parma had a reputation as being anti-black (Tr. 1428). On more than one occasion he was accused of being racially-biased because those making the accusations thought he was from Parma (Tr. 1429).
A final factor contributing to the absence of blacks at Independence Place was the refusal of Parma Heights to allow those living in the building to get federal rent supplements (Tr. 1419; Def. Ex. AD). A Section 236 project with rent supplements normally attracts a larger proportion of low-income persons than a normal Section 236 project because the rent supplement income levels are the same as those required for public housing eligibility (Tr. 566-567). At the time the Parmatown Woods and Independence Place proposals were submitted by Forest City, Section 236 projects were encouraged to have 20% rent supplements (Tr. 602). If Parmatown Woods had been built in Parma and rent supplements were utilized, it is likely that some low-income minority persons would have become tenants there. While the Court cannot conclude that any specified number of blacks would have resided in Parmatown Woods if it had been constructed, it is convinced that the denial of the building permits eliminated even the possibility of affordable housing for many low-income minorities, and thereby served to strengthen Parma's already strong racially exclusionary image.
D. PARMA'S LAND-USE ORDINANCES
1. The Height and Voter Approval of Low-Income Housing Ordinances
The rejection of Parmatown Woods on November 3, 1971, occurred only one day after a general election in which the electorate voted upon two issues which had grown out of the months-long opposition to that low-income housing project. On November 2, 1971, the voters of Parma enacted two ordinances which appeared on the general election ballot by initiative petitions. One ordinance, General Building Regulations § 1529.37 (Gov. Ex. 68) limits the height of all future residential structures to 35 feet. The other Building Code § 1528 (Gov. Ex. 69), requires approval by the Parma electorate of (1) the development, construction or acquisition in any manner of a subsidized housing project by a public body, or (2) any participation by private individuals or non-public bodies in any program in which the Federal Government pays all or part of the rent of low-income families.
Parma contends that the enactment of these ordinances occurred due to non-racial opposition by Parma residents to high-rise apartments and the possibility that federally-subsidized housing units might be built in the City. While numerous non-racial factors influenced the passage of the ordinances, the Court finds that the fear that blacks would move into Parma was an important motivation.
Opposition to the high-rise zoning classification existed at the time the classification was created in 1963 (Tr. 1177-1178, 1319; Kopchak dep. 88), and continued to exist until passage of the 1971 ordinance. Parma argues that there were several non-racial grounds on which residents objected to high-rise buildings over the years. Specifically, high-rise buildings were mentioned as being fire hazards (Tr. 1273; Kopchak dep. 183), creating traffic congestion (Kopchak dep. 31), causing ecological and aesthetic damage (Dunning dep. 38; Kopchak dep. 31), and overloading sewage facilities (Tr. 1270-1271). While the Court believes that there were Parma residents who sincerely opposed high-rise apartments for these reasons, there is no evidence in the record that any of the above problems actually existed. Additionally, persuasive evidence indicates that racial considerations contributed decisively to passage of the ordinances.
The City of Parma also argues that high-rise apartments located in the area proposed for Parmatown Woods would have caused traffic congestion problems. No evidence was introduced by the City, however, to show that congestion would have occurred if Parmatown Woods had been built. Indeed, no study was done by Parma to show how construction of the project would have affected the flow of traffic in the area (Reinke dep. 151-152).
Parma also contends that the sewer system in the Parmatown Towers-Parmatown Woods area was inadequate to handle the increased demands that would have existed had Parmatown Woods been constructed (Tr. 1270-1271). The evidence indicates, however, that no one ever asked the City Engineer, Mr. Reinke, who has responsibility for the sewers (Reinke dep. 134), to study any possible sewer problem, and he never did so independently (Reinke dep. 147-148; Dunning dep. 37-38). In fact, the record shows that the construction of additional apartments in the Parmatown Towers-Parmatown Woods area would not have affected adversely the sewer system (Reinke dep. 139-140, 142-143).
Finally, Parma argues that construction of high-rise apartments in the Parmatown area would be aesthetically and ecologically harmful (Dunning dep. 38; Kopchak dep. 28). Again, no evidence was presented to indicate that such damage would have occurred had Parmatown Woods been built and no studies of possible damage were made (Kopchak dep. 31).
The absence of evidence substantiating the objections to high-rise apartments, together with the fact that the initiative petitions for the ordinances were circulated at the same time Parmatown Woods was being considered and debated often in blatantly racial terms (Gov. Ex. 61), supports the finding that race discrimination was a motivating force behind passage of the ordinances. While three high-rise apartment buildings — Regency, Midtown and Parmatown Towers — were built in Parma during the time of this apparent opposition to high-rise buildings, only Parmatown Woods, a federally subsidized low-income housing project, was not built. There was no opposition whatever to the three former buildings on the basis of the anticipated race of their occupants, but this subject dominated the debate over Parmatown Woods.
Some of the same people who objected vehemently to Parmatown Woods were sponsors of the initiatives to impose height and voter approval limitations (Sands dep. 83-84). City officials and sponsors of the initiatives anticipated that, if passed, they would cover Parmatown Woods and any other low-income or federally subsidized
The Court already has found that racial discrimination was an important motivating factor in the opposition to Parmatown Woods in particular, and to public and low-income housing in general. Passage of the height and voter approval of low-income housing ordinances was part of this opposition, and racial discrimination again played a decisive role.
As a practical matter, the height and voter approval ordinances make the construction of any public or low-income housing very difficult. The 35-foot-height limitation makes the construction of federally subsidized low-income housing economically impractical (Tr. 795-798). Land available for multi-family apartments is generally far too expensive to support low and moderate-income family housing. For this reason most developers try to use federal programs like Section 236 to build high-rise buildings which serve both families and the elderly (Tr. 796). The rent structure which is available under government housing programs does not make it economically feasible to construct low-rise low-income housing in Parma (Tr. 797).
The low-income housing voter approval ordinance, Building Code § 1528, is another formidable obstacle to the development of low-income housing. The language of the ordinance is so all-inclusive that it appears to require voter approval for the development of any type of subsidized low-income housing by a public body or housing authority, and for the participation by private persons in any federal program which subsidizes rent. This ordinance even appears to encompass Section 8 housing, which is the main subsidy program administered by HUD at the present time (Tr. 554).
The deterrent effects of Parma's height and low-income housing voter approval ordinance were magnified even further by the events surrounding their adoption. Developers of federally-subsidized housing were aware of the fate of Parmatown Woods and
The actual effect of the height and low-income housing voter approval ordinances has been devastating.
2. The Parking and Zoning Change Ordinances
The government contends that two other Parma ordinances have a racially exclusionary effect and therefore violate the Fair Housing Act. One of the ordinances, Planning and Zoning Code § 1197.03, requires 2½ parking spaces per dwelling unit; the other, Building Code, § 1229.01, requires voter approval for any change in the zoning code or in existing land uses. The record does not show that either of these ordinances was passed for the purpose of excluding minorities. Yet the effect of both ordinances is to make the construction of low-income housing substantially more difficult and thereby preserve the all-white character of the City.
The requirement of 2½ parking spaces per dwelling unit for apartment buildings is the highest parking requirement in the City for residential structures (Tr. 1242-1243). Only one parking space per unit is required for one and two-family homes, and only four-fifths of a space per unit is required for hotels and rooming and lodging houses. Planning and Zoning Code § 1197.02(b). Even condominium developments, which are also multi-family housing, are required to have only two parking spaces per unit. Planning and Zoning Code § 1159.07(b).
Parma has offered no explanation as to why it requires 2½ spaces per apartment unit.
The effect of Parma's 2½ parking space requirement has been to inhibit the construction of low-income housing in Parma.
On November 5, 1974, voters of Parma enacted an ordinance which requires voter approval of any change in existing land uses or land use ordinances. Building Code § 1229.01 (Gov. Ex. 87). Under this ordinance, any developer needing a zoning or land-use change to construct low-income multi-family housing is now required to get approval for the change from the Parma voters.
In light of the open hostility which residents of Parma have displayed toward low-income housing in the past, a developer would be extremely reluctant to propose a low-income housing project that would require a zoning change. In fact, no developer has submitted a request for a zoning change to build a multi-family dwelling since the ordinance was enacted (Petruska dep. 286). Significantly, there has been a decrease in residential construction and in building permit applications for residential construction in Parma since the enactment of this ordinance (Vittardi dep. 114-115).
With the passage of this voter approval of zoning changes ordinance, a developer who wants to construct low-income federally subsidized housing is faced with a Herculean task. First, he has to secure voter approval of his low-income proposal, and face the costly delay inherent in that process. Then, in the unlikely event that he is successful, he will have to face the voters again if a zoning change is necessary to build the project. In any event, he will then be confronted with the prospect of constructing an economically infeasible complex, given the 35-foot-height limitation and the requirement of 2½ parking spaces per dwelling unit from which a variance has never been granted since 1971. In effect, what the 1974 zoning ordinance did to low-income housing was to "add a more difficult hurdle to the already impossible one" (Tr. 799).
The cumulative effect of the four ordinances enacted by Parma is to prevent construction of any low-income housing in the City. Developers will not even attempt to bring low-income public housing proposals to the City, where it is clear that at best they will receive no cooperation from Parma officials, and at worst they will encounter deep-rooted resistance (Tr. 811).
E. THE COMMUNITY DEVELOPMENT BLOCK GRANT APPLICATION
The government's final contention is that Parma's conduct in applying for Community Development Block Grant funds was motivated by racial considerations and had the effect of preserving a segregated community. Title I of the Housing and Community Development Act of 1974, known as the Community Development Block Grant Program, 42 U.S.C. § 5301 et seq., is designed to bring federal funds for housing and community development to local governments (Tr. 713-714). Its purpose is to provide funds for the improvement of the urban environment, the development of the inner city and the deconcentration of low-income households (id.).
Decisions regarding how these funds are to be utilized are made by local public officials and interested citizens. However, one of the requirements imposed by the federal government for a community's participation in the program is that provisions be included regarding the housing needs of lower income families (Tr. 716). In order to insure that the requirement is met, a community must submit a Housing Assistance Plan which sets forth the community's proposals for meeting the needs of lower income families within its political jurisdiction and for providing housing for those "expected to reside" in the community (Tr. 716).
In late 1974, Mayor John Petruska proposed that Parma apply for Community Development Block Grant (CDBG) funds after he had received information about the creation of the CDBG program from the federal government (Tr. 1349; Petruska dep. 302). A decision was made to apply for CDBG funds and the Regional Planning Commission was requested by Parma to assist the City in the preparation of its application (Tr. 1349). Pursuant to the requirements for the CDBG program, several public meetings were scheduled by the City to get citizen input on Parma's participation in the program (Tr. 756, 1350), and notices were sent to the various media in the Cleveland area advertising these meetings (Gov. Ex. 88; Def. Ex. CQ, CS, CT, CU, CV, CW). The City received many comments from Parma residents concerning how the CDBG funds could be used (Tr. 1350-1351; Gov. Ex. 89; Def. Ex. BG, DG). Some of the suggestions included the need for a new civic center, the preservation of an historic site, the improvement of a hockey rink, the enlargement of the Senior Citizens program, and a center for the treatment of emotional problems (Tr. 1402-1403; Def. Ex. CU, CW).
Following the meetings, Parma officials met with representatives of the Regional Planning Commission and discussed the CDBG application (Tr. 1351-1352, 1388). The discussion centered on the suggestions that had been made at the public meetings and the needs and goals which Parma would include in its application to HUD (Tr. 1351-1352, 1388). After this meeting, the Regional Planning Commission drafted Parma's application (Petruska dep. 303). The decision on what ultimately went into Parma's CDBG application was made by Mayor Petruska and the members of the Parma City Council (Petruska dep. 305).
In late February 1975, the Parma City Council approved submission of the plans (Gov. Ex. 92), and after certification that the project had the appropriate review (Def. Ex. BX), the application was submitted to HUD in April of 1975 (Gov. Ex. 96).
Parma's CDBG application was rejected by HUD because the City did not submit an adequate Housing Assistance Plan. This deficiency in the application, and Parma's adamant refusal to correct it, is further evidence of Parma's consistent opposition to low-income housing and to anything which might serve to alter the virtually all-white character of the City.
Table 15 of Parma's Housing Assistance Plan, submitted as part of its CDBG application, is entitled "Housing Assistance
Parma's application was disapproved by the federal government because of the City's failure to provide low-income housing assistance goals. HUD found a zero figure under "Additional Households Expected to Reside" in Parma to be plainly inconsistent with generally available facts and data which indicated that additional lower-income households could be expected to reside in Parma as a result of existing employment opportunities there (Gov. Ex. 94, 97, 98, 100, 101, 103, 104). Readily available data from the 1970 United States Census indicated that 5,843 low-income persons resided outside of Parma and worked in the City (Gov. Ex. 94). In addition, HUD found Parma's "zero" goal for housing assistance to be totally at odds with its stated low-income housing need of 1537 households (id.). HUD officials advised the City of Parma that its CDBG application was deficient in these two respects and that the application would be denied if those deficiencies were not corrected (Gov. Ex. 98). Parma chose not to revise its application for CDBG funds (Petruska dep. 317-318), and the application was finally rejected by HUD on June 27, 1975 (Gov. Ex. 104).
Parma has advanced three non-racial reasons to explain why the inadequate Housing Assistance Plan was submitted with the CDBG application. First, Mayor Petruska claims that the City was not sure of the accuracy of the census figures used by the Regional Planning Commission in preparation of the application and had to verify these figures through various studies before proceeding further (Tr. 1384-1385). Yet Mayor Petruska personally certified the accuracy of everything in the application (Tr. 1390), and Parma relied on census data throughout the application. No fewer than 11 of the 16 tables in Parma's CDBG application utilized figures from the 1970 Census, concerning such things as age of housing, condition of housing, income of families, and number of elderly residents. Census figures showing the need for assistance to low-income elderly households in Parma apparently were considered accurate enough by Parma to warrant proposing senior citizen housing in its application (See Table 16, 2 pages before Table 15 of Parma's CDBG application, Petruska dep. Ex. 24). So were the the figures in Table 15 which indicated a low-income housing need.
Parma decided to reject only those census figures which indicated a need for low-income housing. However, the City has advanced no explanation as to why there should be selective inaccuracy in the published census data it chose to utilize. In the absence of such an explanation, this Court is not persuaded that Parma was actually or reasonably concerned about inaccurate data. Rather, the clear inference is that Parma was opposed to the construction of low-income housing not limited exclusively to Parma's elderly residents.
The second explanation advanced by Parma to justify its decision to exclude plans for low-income housing assistance in the CDBG application is that the application itself specified that a certain amount of dollars was to be used to conduct a study of
Parma's third reason for submitting an inadequate plan is that its "zero" goal of housing assistance for low-income households reflects community needs as expressed by the Parma public at public hearings. The City claims that low-income housing was not indicated as being such a need (Tr. 1388, 1390). However, the notices of proposed CDBG public meetings which were prepared by Parma officials never mentioned that housing of any kind was to be a topic of discussion (Def. Ex. CS, CT, CU, CV, CW; Gov. Ex. 88, 91; Tr. 1389-1390). While the need for low-income housing was noticeably omitted as a topic of discussion, numerous other topics were specified, such as construction of a civic center and improvement of hockey facilities. In the absence of notice that low-income housing needs would be discussed, it is not surprising that the community did not indicate the existence of such needs at the CDBG hearings. The Court rejects Parma's contention that the lack of an expressed need for low-income housing at two public hearings means that no such need existed. The evidence amply indicates that there was a definite need for low-income housing in Parma.
The three reasons advanced by Parma to justify its Housing Assistance Plan are insufficient to account for the actions undertaken. Even if credible, they do not explain the City's refusal to revise the CDBG application once HUD's objections became known. The evidence reveals that the real explanation behind Parma's action in the CBDG application was a deep abhorrence of low-income housing because it might enable "outsiders" to reside in the City.
During the period of time in late 1974-early 1975, when a possible application by Parma for CDBG funds was being discussed, suggestions from citizens on the possible use of such funds were received by the City (Tr. 1350-1351). In a January 13, 1975 letter enclosing such suggestions, it was revealed that some opposition to participation in the CDBG program had surfaced because of a fear that the program "was a devious plot to slip low-cost housing into Parma through the back door" (Gov. Ex. 89). That this was not just an isolated occurrence and was made clear a month later, when on February 27, 1975, a Special Meeting of the Parma City Council was held to discuss the proposed application of the City of Parma for CDBG funds (Gov. Ex. 92). After discussion on the merits of the application, a Council vote was held on whether or not to permit the City to apply for the funds. The vote was in favor of the application, but a further concern over what Parma was getting itself into by applying for the funds was voiced by one of the Parma City Councilmen, Gerald Boldt, at the meeting. Boldt voted against the application because he felt that Parma, through its CDBG application, was "getting involved in an area where we are seeking Federal subsidies in low-income housing" (id. at p. 4). Although other Council members expressed some concern over the possibility of a "string" being attached to receipt of CDBG funds, a majority of the Council apparently was assured that this was not the case by Mayor Petruska, who stated
What Mayor Petruska apparently thought the CDBG program stood for, and what the City Council voted for on February 27, 1975, was for the right of Parma to receive federal funds while ignoring its stated low-income housing needs and the needs of those low-income persons who might want to live in Parma (Tr. 1356; Gov. Ex. 99). In a letter to HUD dated May 14, 1975 (Gov. Ex. 99), Mayor Petruska wrote about the City's need for senior citizen housing
Mayor Petruska was not alone in his desire to avoid low-income housing and the opportunities such housing might provide to "outsiders." Parma's Congressman, Ronald Mottl, echoed Petruska's sentiments when he wrote to HUD Secretary Carla Hills about preserving the "character" of Parma (Def. Ex. BN).
There is little question that Parma's character—its all-white character — was highly valued by the residents of the City and by City officials. Construction of low-income housing was opposed because it meant the blacks might move into Parma. See pp. 1072-1074 supra. To maintain the City's all-white character, millions of dollars in federal funds were rejected by the citizens of the community and their elected officials. The effect of this rejection was to further insulate the community against low-income housing and increased opportunities for minority housing (Tr. 719).
The receipt of CDBG funds would have helped the City of Parma to provide an equal opportunity in housing for all races (Tr. 715). By rejecting the funds, Parma assured that it would continue to be an almost totally segregated community. The Court finds that Parma's submission of an inadequate CDBG application and its refusal to amend that application were intended to foreclose, and in fact have foreclosed, housing opportunities that would otherwise have been made available to all low-income persons, including blacks.
IV. VIOLATIONS OF THE FAIR HOUSING ACT
The government is authorized to bring this lawsuit under Section 813 of the Fair Housing Act, 42 U.S.C. § 3613.
The government contends that the City of Parma violated the Fair Housing Act by both engaging in a pattern and practice of resistance to the full enjoyment of rights granted by the Act, and by denying rights granted by the Act to groups of persons. The rights granted by the Act which the government claims Parma has resisted or denied are specified in two separate sections: Sections 804(a) and 817, 42 U.S.C. §§ 3604(a) and 3617. Section 804(a) provides in part that "it shall be unlawful . . to make unavailable or deny . . . a dwelling to any person because of race, color, religion, or national origin." Section 817 provides in part that "it shall be unlawful to . . . interfere with any person in the exercise or enjoyment of, . . . or on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by section . . . 3604 . . . of this title." It is the government's contention that Parma's persistent resistance to the construction of low-income housing in the City violates the provisions of both of these sections.
To demonstrate a pattern or practice of resistance to the enjoyment of the rights secured by Sections 804(a) and 817, the government must prove more than an isolated incident of unlawful discrimination. United States v. Pelzer Realty Co., 484 F.2d 438, 445 (5th Cir. 1973), cert. denied, 416 U.S. 936, 94 S.Ct. 1935, 40 L.Ed.2d 286 (1974); United States v. Reddoch, 1 EOHC § 113,569 (S.D.Ala.1972), aff'd, 467 F.2d 897 (5th Cir. 1972). The unlawful discrimination, in other words, must have been a regular procedure followed by the defendant. See International Brotherhood of Teamsters v. United States, 431 U.S. 324, 360, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). This does not mean that the defendant must have engaged uniformly in unlawful acts, United States v. Reddoch, supra; United States v. Real Estate Development Corp., 347 F.Supp. 776, 783 (N.D.Miss.1972), for it is clear that failures to act also may constitute violations of the Fair Housing Act. Resident Advisory Board v. Rizzo, 425 F.Supp. 987, 1018-1019 (E.D.Pa.1976), aff'd, 564 F.2d 126, 153 (3rd Cir. 1977), cert. denied, 435 U.S. 908, 98 S.Ct. 1457, 55 L.Ed.2d 499 (1978). The existence of a discriminatory policy, statute, or ordinance is itself a discriminatory pattern or practice. United States v. Hughes Memorial Home, 396 F.Supp. 544, 551 (W.D.Va.1975); see 106 Cong.Rec. 7223 (Senator Keating). Additionally, the failure to eliminate a policy which prevents fair housing violates the Act. Resident Advisory Board v. Rizzo, 425 F.Supp. at 1018.
To demonstrate that a group of persons has been denied specific rights granted by the Act the government must show that the discriminatory conduct affects more than a single individual. Even an isolated act of discrimination against a group of persons is sufficient to support relief. United States v. Hunter, 459 F.2d 205, (4th Cir. 1972), cert. denied, 409 U.S. 934, 93 S.Ct. 235, 34 L.Ed.2d 189 (1972).
The Court, after considering the evidence in its entirety, is convinced that Parma engaged in a pattern and practice of resistance to the full enjoyment of the rights granted by Sections 804(a) and 817 of the Fair Housing Act by following a consistent
The Court specifically finds that the rejection of the fair housing resolution, the consistent refusal to sign a cooperation agreement with CMHA, the adamant and long-standing opposition to any form of public or low-income housing, the denial of the building permit for Parmatown Woods, the passage of the 35-foot height restriction ordinance, the passage of the ordinance requiring voter approval for low-income housing, and the refusal to submit an adequate housing assistance plan in the Community Block Development Grant application, individually and collectively, were motivated by a racially discriminatory and exclusionary intent. The purpose of these actions, the Court finds, was to exclude blacks from residing in Parma and to maintain the segregated "character" of the City. These actions, individually and collectively, also violated the Fair Housing Act by denying to blacks, Parma residents, and prospective low-income housing developers rights secured by Sections 804(a) and 817.
This Court is well aware of the difficulty and danger of assessing and attributing motivations to actions undertaken by public officials and the electorate. And where the motive alleged is racial discrimination, which generally is exhibited in cloaked and subtle forms, the task is all the harder. See Palmer v. Thompson, 403 U.S. 217, 91 S.Ct. 1940, 29 L.Ed.2d 438 (1971). In this case, however, the evidence of racially discriminatory intent is overwhelming. Public expressions of racial bias were not limited to certain residents of the City, but were made by the highest elected public officials. Actions were taken and decisions were made which are inexplicable in the absence of racial motivations. The evidence conclusively establishes that the City of Parma took a series of actions to prevent the construction of low-income housing and thereby preclude blacks from moving into the community.
The evidence shows, for example, that in defeating the proposed fair housing resolution and in blocking every effort to build public and low-income housing, the Mayor, City Council President and members of the Council stated publicly that they were opposed to blacks moving into the City of Parma. These elected officials were opposed to any action which could change the virtually all-white composition of Parma's neighborhoods. Their public statements clearly establish that they equated public and low-income housing with housing for blacks.
With the exception of the rejection of Parmatown Woods, these particular public officials were involved in all of the actions which prevented the construction of low-income housing. Even in the case of Parmatown Woods, the Building Commissioner and City Engineer who denied the building permit were appointed by Mayor Petruska and accountable to the City's leadership. The attitudes of the Mayor, the President of City Council, and members of the Council were known to these subordinate local officials. And as the Court has noted recently, the attitudes expressed by City leaders can "infect all administration personnel . ., and the obvious foreseeable consequence is that lower echelon decision makers would assume that the established, albeit informal, city policy was that it was proper" to practice racial discrimination. Arnold v. Ray, No. C 73-478 (N.D.Ohio, decided December 11, 1979), slip op. at 4-5 (Lambros, J.).
The direct evidence of racial intent in this case is well-documented and much more substantial than that involved in previous fair housing cases in which municipalities have been found to practice a deliberate policy of racial exclusion. Compare, e. g.,
The evidence shows that Parma's virtually all-white composition was created by pervasive acts of purposeful discrimination, and was preserved by a series of discriminatory actions taken by the City. Proposals for the construction of low-income housing projects which would have had an integrative effect on the community were objected to vehemently by many of Parma's residents on racial grounds. In other significant actions, namely the rejection of Parmatown Woods and the requirement of voter approval for federally subsidized housing, abrupt departures from normal procedures insured that racial minorities would not be able to find affordable housing in Parma.
These actions on the part of the City of Parma are evidence of a segregative intent. They had a segregative effect which was not only foreseeable, but actually foreseen. Every time Parma was confronted with a choice between decisions that would have had an integrative or segregative effect, Parma chose the latter. The City of Parma consistently has made decisions which have perpetuated and reinforced its image as a city where blacks are not welcome. This is the very essence of a pattern and practice of racial discrimination. United States v. Youritan Constr. Co., 370 F.Supp. 643, 650-651 (N.D.Calif.1973), aff'd in relevant part, 509 F.2d 623 (9th Cir. 1975). See also United States v. Real Estate Development Corp., 347 F.Supp. 776 (N.D.Miss.1972); United States v. Hughes Memorial Home, 396 F.Supp. 544 (W.D.Va.1975). Cf. Greene v. City of Memphis, 610 F.2d 395 (6th Cir. 1979), cert. granted, ___ U.S. ___, 100 S.Ct. 2150, 64 L.Ed.2d 787 (1980).
Parma claims that all of the actions it took were lawful because they are within the ambit of legitimately derived municipal authority. The City's basic position is that it has absolute authority to decide whether it wishes to pass a fair housing resolution, permit or encourage low-income housing within its boundaries, participate in federal housing programs, or promulgate and enforce zoning laws. According to the City "[t]he bigoted comments of a few citizens, even those with power, should not invalidate action which in fact has a legitimate basis." Metropolitan Housing Development Corp. v. Village of Arlington Heights, 558 F.2d 1283, 1292 (7th Cir. 1977) (Arlington Heights II).
The Court cannot accept the City of Parma's contention that racial discrimination can be a permissible "secondary" motivation for municipal actions if there are other legitimate bases for the actions. Such a contention is inconsistent with the great weight and wisdom of precedent which holds that a denial of housing violates Section 804(a) of the Fair Housing Act if race is even one of the motivating factors. Robinson v. 12 Lofts Realty, Inc., 610 F.2d 1032, 1042 (2d Cir. 1979); United States v. Pelzer Realty Co., 484 F.2d 438, 443 (5th Cir. 1973), cert. denied 416 U.S. 936, 94 S.Ct. 1935, 40 L.Ed.2d 286 (1974); Smith v. Sol D. Adler Realty Co., 436 F.2d 344, 349-350 (7th Cir. 1970).
The Court is aware of no case in which a Fair Housing Act claim was rejected where it was established that race was a partial reason for the denial of housing. See Robinson v. 12 Lofts Realty, Inc., supra at 1042. Race is an impermissible factor in municipal low-income housing decisions which "cannot be brushed aside because it was neither the sole reason for discrimination nor the total factor of discrimination. [There is] no acceptable place in the law for partial racial discrimination." Smith v. Sol D. Adler Realty Co., supra at 349-350.
Parma's reliance on dicta from Arlington Heights II to justify its low-income housing decisions despite the blatant racial bias of some elected officials is unfounded. Neither the procedural history of the case nor
Arlington Heights II was decided by the Court of Appeals for the Seventh Circuit after being remanded by the Supreme Court in Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977) (Arlington Heights I). The case involved the refusal of Arlington Heights to rezone certain property to permit the construction of Section 236 low-income housing. The Supreme Court noted that the Court of Appeals, which reversed the District Court and held that discriminatory impact violated the Equal Protection Clause, had approved certain of the District Court's findings regarding discriminatory intent. Specifically, the Court of Appeals approved the finding that "the petitioners were not motivated by racial discrimination or intent to discriminate against low-income groups when they denied rezoning, but rather by a desire to protect property values and the integrity of the Village's zoning plan. [D.C.] 373 F.Supp. , at 211." Arlington Heights I, supra at 259, 97 S.Ct. at 560.
The Supreme Court, in reversing and remanding the case, held that "[p]roof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause." Id. at 265, 97 S.Ct. at 563. Absent evidence of intent to discriminate, the Court of Appeals was limited to a consideration of the applicability and scope of the "racially discriminatory effects" standard for assessing Fair Housing Act violations. Thus, the Arlington Heights II court was addressing a situation in which evidence of intent, by itself, constituted an insufficient basis on which to grant relief. It was in this context that the court cautioned against the indiscriminate use of racial statements to demonstrate a violation of the Fair Housing Act.
In this case, the direct evidence of purposeful discrimination by the City of Parma against blacks is overwhelming. The situation is totally different from that in Arlington Heights II where "the absence of any such evidence . . . is a factor buttressing the Village's contention that relief should be denied." Arlington Heights II, supra at 1292.
Parma also erroneously relies on Citizens Committee for Faraday Wood v. Lindsay, 507 F.2d 1065 (2d Cir. 1974) to support its contention that the municipal decisions and actions which were taken in an atmosphere where racial considerations were present are not unlawful. Faraday Wood was an action seeking relief from New York City's decision not to proceed with a publicly financed housing project. The District Court, in dismissing the complaint, found that
362 F.Supp. 651, 655 (S.D.N.Y.1973). In affirming the lower court, the Court of Appeals for the Second Circuit noted that while some community opposition to the housing project was based on racial considerations, the opposition "was not for the most part racially motivated." 507 F.2d at 1070. To the extent that Faraday Wood might be read as suggesting that racial discrimination may be a permissible secondary motivation for municipal action, this Court respectfully declines to embrace the reasoning of the Second Circuit.
An accurate analysis of Faraday Wood reveals that the court paid particular attention to evidence that the city officials who made the decision to terminate the housing project were not motivated by racial considerations. Unlike the present case, the Court in Faraday Wood noted that "in fact,
The City of Parma's claim that it did not violate the Fair Housing Act because it was acting within the ambit of legitimately derived authority is without factual or legal support. The record in the present case is replete with instances of community opposition to low-income housing based on racial grounds and with evidence that city officials responded to these racial considerations. Parma officials were acutely aware of race and their decisions were influenced decisively by this awareness.
The City of Parma cannot choose to make decisions on the basis of racial considerations. Actions which are typically lawful, such as a mandatory referendum on housing and zoning matters,
The Court finds that the City of Parma violated the Fair Housing Act not only because it made decisions with the intent to discriminate, but also because its decisions have had significant discriminatory effects. Indeed, the racially discriminatory intent and racially discriminatory effects standards dovetail because Parma's overall intent to exclude black residents has brought about the desired result. The challenged actions have had the effect, individually and collectively, of excluding blacks from
In addition to a pattern and practice of violations of rights secured by Sections 804(a) and 817 of the Fair Housing Act, the City of Parma has prevented groups of persons from enjoying those rights. The most obvious victims have been blacks who have been prevented or deterred from obtaining housing in Parma. But the harm from the City's misguided policies has not been limited to "outsiders"; Parma residents also have been denied the right and benefit of inter-racial association guaranteed by the Act. See Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972); Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99 S.Ct. 1601, 60 L.Ed.2d 66 (1979). In addition, the Parma residents who are less-well-off and who would qualify for public or low-income housing have been denied such housing because of the City's fears that blacks would move into the City. In short, the actions of the City of Parma in consistently opposing all forms of public or low-income housing and in making construction of such housing economically infeasible, have denied to blacks, needy residents of Parma, and Parma residents generally rights granted by Section 804(a) of the Fair Housing Act.
The rights guaranteed under Section 804(a) to white residents and to black non-residents are not the only rights under the Fair Housing Act that the City has violated. By rejecting the Parmatown Woods proposal and by enacting ordinances designed to preclude the construction of low-income housing, the City has interferred with the ability of Forest City Enterprises and other prospective developers to construct integrated housing. This interference by the City with developers attempting to provide equal housing opportunities in Parma is a violation of Section 817 of the Fair Housing Act. See United States v. City of Black Jack, 508 F.2d 1179 (8th Cir. 1975); United States General, Inc. v. City of Joliet, 432 F.Supp. 346 (N.D.Ill. 1977).
In the face of clear violations of the Fair Housing Act, Parma attempts to justify its actions by pointing to the absence of meaningful numbers of blacks on the west side of the Cleveland metropolitan area. The thrust of the argument is that other communities in the Cleveland metropolitan area are segregated and that it would be unfair to single out Parma alone for violations of the Fair Housing Act. This disingenuous argument has been made and rejected too many times to warrant a serious response. Parma cannot be immunized from complying with the provisions of the Fair Housing Act solely because other localities also might have violated the Act. Moreover, the western suburbs of the City of Cleveland are not parties to this case, and no evidence has been submitted to substantiate Parma's allegation that any of the communities on the west side of Cleveland have engaged in the same sort of unlawful conduct.
IT IS SO ORDERED.
THE "CRILE" SITE
At trial, the government challenged Parma's actions regarding the acquisition and utilization of surplus federal land at the "Crile" site. Because the challenged conduct took place in 1968 before passage of the Fair Housing Act, it cannot constitute an independent violation of the Act. Cf. Hazelwood School District v. United States, 433 U.S. 299, 97 S.Ct. 2736, 53 L.Ed.2d 768 (1977). Nevertheless, this conduct has evidentiary value with respect to the alleged post-Act violations because it sheds some light on Parma's general attitude towards housing opportunities which would have an integrative effect. Cf., id. at 309-310, n. 15, 97 S.Ct. at 2742-2743, n. 15.
In January 1968, Mayor Petruska of Parma, Mayor Paul Cassidy of Parma Heights and other officials of the two communities met with representatives of the federal government at the latters' request to discuss a proposal to convey federally-owned land located in Parma and Parma Heights to these municipalities. This land was to be conveyed under a new federal program called "New Town in Town" or "Federal Lands for Urban Community Needs." The program was designed to employ underutilized lands in the federal inventory to promote the expedited construction of racially and economically integrated housing and to provide such housing in conjunction with high-quality facilities (Tr. 499-501). A stated objective of the program was to overcome patterns of segregation that were apparent in many cities (Tr. 501). The "Crile" site was selected by a Special Task Force as one of the primary sites in the program (Tr. 508), and a team, led by Dorn C. McGrath of the Department of Housing and Urban Development, was sent to meet with officials of Parma and Parma Heights (Tr. 508).
At the meeting, Dr. McGrath explained to the two mayors that the program's objective was to provide housing for people of all income levels, including low and moderate, on an open-occupancy basis, although some industrial or commercial development of the site would also be possible (Tr. 511-513). He stressed that the goal of the program was not to place public housing in the municipalities, but to achieve both economic and racial integration (Tr. 513-518).
Mayor Petruska was opposed to the use of this land to build racially integrated housing.
Parma contends that its preconceived plans for the "Crile" site mitigate against any finding that resistance to racial integration motivated its rejection of the federal government's proposal to place an integrated
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