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KENNEDY PARK HOMES ASSN., INC. v. CITY OF LACKAWAN

August 13, 1970

KENNEDY PARK HOMES ASSOCIATION, Incorporated, Colored People's Civic and Political Organization, Inc., James M. Thomas, Samuel Martin, the Diocese of Buffalo, N.Y., Plaintiffs, United States of America, Plaintiff-Intervenor,
v.
CITY OF LACKAWANNA, Lackawanna, New York, et al., Defendants


Curtin, District Judge.


The opinion of the court was delivered by: CURTIN

DECISION AND ORDER

CURTIN, District Judge.

 COMPLAINTS

 On December 2, 1968, Kennedy Park Homes Association, Inc. (hereinafter referred to as K.P.H.A.), Colored People's Civic and Political Organization (hereinafter referred to as C.P.C.P.O.), James M. Thomas and Samuel Martin filed a complaint against the City of Lackawanna, Mayor Mark L. Balen, Director of Development Frank Cipriani, Chief Engineer Edward Kuwik and the then members of the Lackawanna City Council charging violations of the Equal Protection and Due Process Clauses of the Fourteenth Amendment, the Civil Rights Act (42 U.S.C. § 1983), and the Fair Housing Act of 1968 (42 U.S.C. § 3601 et seq.).

 The complaint alleges that the Diocese committed itself to sell to K.P.H.A., a non-profit organization formed by the C.P.C.P.O., 30 acres of its approximately 80 acres of vacant land located in Lackawanna's third ward for development of a low income housing subdivision. The two individual plaintiffs allege that they intend to purchase homes in the proposed subdivision.

 Plaintiffs contend that certain resolutions amending the City's zoning ordinances to restrict all land referred to therein to the exclusive use as a park and recreation area and declaring a moratorium prohibiting the approval of all future subdivisions were passed in October, 1968 by the City Council for the purpose of denying low income families -- whether they are elderly, Negro or Puerto Rican -- the equal protection of the laws in obtaining decent housing. The Diocese contends the purpose of these resolutions was to deny it the right to use and dispose of its property.

 Among other things, the plaintiffs seek a judgment declaring the defendants' use of the City's zoning and appropriation powers an unconstitutional deprivation of plaintiffs' rights and mandatory relief requiring the defendants to take steps toward the approval of the subdivision. Plaintiffs also seek to enjoin defendants from enforcing the October, 1968 zoning and moratorium ordinances.

 On February 5, 1969, this court -- the defendants offering no opposition -- granted the United States of America leave to file a complaint in intervention pursuant to Section 902 of the Civil Rights Act (42 U.S.C. § 2000h-2). Plaintiff-Intervenor invokes this court's jurisdiction under Section 813 of the Civil Rights Act of 1968 (42 U.S.C. § 3613).

 The allegations in the complaint in intervention are substantially the same as those in the plaintiffs' complaint. In its prayer for relief, the Plaintiff-Intervenor asks the court to enjoin the defendants from engaging in any other acts or practices which have the effect of depriving Negroes of their right to purchase or rent dwellings in Lackawanna without regard to their race or color.

 ANSWERS

 The original answer filed January 29, 1969, an amended answer filed February 17, 1969, and the answer to the complaint in intervention filed February 17, 1969 generally deny the allegations of the complaints. The answers also assert five "defenses": (1) Defendants allege that the City desires, and very much needs, a park and that construction of the proposed subdivision in the Martin Road area (the only large and centrally located vacant area left in Lackawanna) would forever foreclose the City's opportunity to have such a park; (2) Defendants allege that the sewers in the Martin Road area are so overloaded that they could not tolerate the additional sewage of a new subdivision; (3) The Diocese of Buffalo has no standing to sue in this action; (4) The complaint fails to state a cause of action; and (5) The plaintiffs have failed to exhaust all administrative procedures to obtain the relief sought herein.

 On June 19, 1969, the court granted the defendants leave to file a supplemental answer alleging the rescission of the October, 1968 ordinances on February 26, 1969. The thrust and purpose of the supplemental answer was to show that no legal impediment stood in the way of plaintiffs' proposed subdivision.

 HISTORY OF LAWSUIT TO DATE

 In addition to the complaints and answers discussed above, certain other pretrial proceedings bear noting to understand this lawsuit.

 When the lawsuit was commenced, the plaintiffs applied for a temporary restraining order and a preliminary injunction restraining the defendants from rezoning the Martin Road area for parks and recreation and from enforcing the October, 1968 ordinances. No order was signed because the defendants consented to hold their park rezoning plans pending a final decision in this case.

 After the defendants filed their supplemental answer setting forth the rescission of the October, 1968 ordinances, the plaintiffs submitted a "Sanitary 5" form to Mayor Balen for approval. The "Sanitary 5" form, with the mayor's approving signature, is in the nature of an application by the City on behalf of a subdivider to the Erie County Health Department for approval of a sewer extension.

 On November 14, 1969, this court gave the defendants two weeks to report on their disposition on the "Sanitary 5" form. On November 28, 1969, the plaintiffs and the court were advised that the mayor refused to sign the "Sanitary 5" form. This refusal effectively stalled any further progress in plaintiffs' attempt to obtain approval for their subdivision plans.

 Afterwards, the defendants moved for a judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. The defendants argued that their affirmative defenses and the subsequent rescission of the October, 1968 ordinances established a "complete defense" to the plaintiffs' actions. Pointing to the specific allegations of the complaints, the defendants contended that the only act of any of the defendants complained of in the complaints was the passage of the October, 1968 ordinances. Since the specific acts complained of were rescinded, the defendants argued, plaintiffs' actions were moot. This argument was directed against all plaintiffs, but especially against the Diocese whose right to dispose of its property, the defendants urged, was no longer impaired.

 In light of the mayor's refusal to sign the "Sanitary 5" form, and noting that the complaint in intervention prayed for an injunction restraining all acts denying Negroes the equal protection of the law in obtaining decent housing, the court denied the defendants' motion in all respects.

 Immediately prior to trial, extensive pre-trial statements of fact and memoranda of law were submitted by the parties. The trial began on April 9, 1970 and concluded on May 21, 1970, after 22 trial days. The parties then submitted post-trial briefs of facts and law. Oral argument was heard by the court on July 10, 1970. On all of the evidence introduced at the trial and arguments made by the parties, the court makes the following findings of fact and conclusions of law pursuant to Rule 52 of the Federal Rules of Civil Procedure.

 COLORED PEOPLE'S CIVIC AND POLITICAL ORGANIZATION

 The C.P.C.P.O. filed its original certificate of incorporation on August 9, 1929. This membership corporation was formed

 
"to promote good fellowship and to extend the acquaintance of its members and for social and political gatherings and lectures, and other amusements for the general welfare and benefit of its members."

 The organization apparently went through a period of inactivity until a reactivation in February, 1962. Richard Easley has been president of this organization from its reactivation to date.

 Shortly after reactivation, the organization showed interest in housing. Most of the members were (and are) residents of Lackawanna's first ward and many of them are employed at the Bethlehem Steel plant.

 The minutes of the C.P.C.P.O. are replete with references to housing discussions among the membership, to nonmember speakers concerning the housing situation, and to reports of C.P.C.P.O. representatives meeting with private and governmental officials about the housing problem. In January, 1968, for example, the C.P.C.P.O. made inquiries of Director of Development Frank Cipriani concerning available vacant land in Lackawanna. They made a written offer to purchase certain vacant land owned by the City in the second ward.

 In March, 1968, the C.P.C.P.O. had obtained a "commitment" from the Diocese for approximately 30 acres of vacant land south of Martin Road. On March 15, 1968, the C.P.C.P.O. created K.P.H.A., a non-profit membership corporation for the development of low income housing. Two officers of C.P.C.P.O. became officers of K.P.H.A.

 K.P.H.A. plans to act as its own general contractor in building the subdivision. However, to aid in this endeavor, it will call upon specialists in various fields. One step was taken early in 1969, when K.P.H.A. retained Cleon Cervas, a Buffalo real estate broker, to conduct a survey of potential home buyers in order to determine their eligibility for financing. After interviewing 23 individuals, Mr. Cervas tentatively determined that about 20 would be eligible for some kind of mortgage. Because of the uncertainty of when final applications would be made, these pre-qualifying interviews were terminated after the lawsuit was filed.

 DIOCESE OF BUFFALO

 The Catholic Diocese of Buffalo encompasses within its territorial jurisdiction the entire City of Lackawanna with its predominantly Catholic population.

 The Diocese is one of the largest landowners in the City. In addition to several small parish churches and schools which occupy small parcels of land, the Diocese "owns" a large complex located near South Park Avenue and Ridge Road in the third ward known locally as "Father Baker's," which includes Our Lady of Victory Basilica, Our Lady of Victory Hospital, Father Baker's Orphanage, and a large high school facility. The Diocese also owns Holy Cross Cemetery and approximately 80 acres of vacant land, most of it situated in the area north and south of Martin Road.

 The Diocese is represented by Attorney Kevin Kennedy, who participated in many of the negotiations for the purchase of vacant land not only with C.P.C.P.O. but also with the City officials.

 LACKAWANNA

 The City of Lackawanna is a municipal corporation established under the laws of the State of New York. A special census taken of Erie County in 1966 showed a total population of 28,717 in Lackawanna, of which 2,693 (9.4%) were nonwhite.

 The City is divided into three wards, the boundaries of which are defined in the City Charter. The first ward is the westernmost ward in the City, completely bounded on the west by the Bethlehem Steel plant situated on Lake Erie. A series of railroad tracks runs along the entire eastern boundary of the first ward with a bridge serving as the only connection within the City between the first ward and the second and third wards. The second ward comprises the middle sector of the City, bounded entirely on the west by the railroad tracks and on the east by South Park Avenue. The third ward is the eastern sector of the City, bounded on the east by the Lackawanna city line.

 The City is bounded on the north by the City of Buffalo, on the east by West Seneca and Orchard Park, on the south by the Town of Hamburg, and on the west by Lake Erie.

 The 1966 census figures show that 98.9% of 2,693 nonwhites living in Lackawanna live in the first ward, and these nonwhites comprise 35.4% of the total first ward population. Comparison of census figures in 1950, 1960 and 1966 shows that the percentage of nonwhites in the first ward has increased from 25% in 1950 to 35.4% in 1966. There is sharp contrast between the first ward and the other two. The 1966 census figures show 29 (0.2%) nonwhites out of a total third ward population of 12,229. Comparison of census figures in 1950, 1960 and 1966 shows a doubling in the white population of the third ward from 6,324 in 1950 to 12,200 in 1966.

 The population of the second ward has changed little through the years, but it must be noted that, out of a 1966 population of 8,974, there was only one nonwhite.

 The most pervasive influence on all Lackawanna life is the Lackawanna plant of the Bethlehem Steel Corporation, located on the shores of Lake Erie in the westerly part of the first ward. This plant, established there in 1901 and operated by the Bethlehem Steel Corporation since the early 20's, has grown to a massive industrial operation employing over 20,000 men. At present, it takes up at least half of the entire land area of the first ward. Recently, increasing industrial needs have led to an encroachment by the corporation on former residential land. For example, New Village, Bethlehem constructed housing located in the northern part of the first ward, is gradually being demolished for conversion from residential to Bethlehem use.

 Unloading docks for ore boats, rail facilities, blast furnaces, coke ovens, open hearths, and mills for the manufacture of rails, beams, sheet steel, and many other steel products are located at Lackawanna. The blast furnaces and open hearths, which are the major sources of air pollution, are located in the northern part of the plant. To the south are situated shipping areas and other mills which do not contribute as heavily to air pollution. Across Route 5 in the southern portion and immediately south of Bethlehem Park, a residential area, is the strip mill which manufactures sheet steel. The plant continues to the south on both sides of the highway into the Town of Hamburg. Included in the facilities in that area is the main office. Bethlehem Steel Corporation is the largest single taxpayer in the City and employs a full-time community relations man to work on City-plant problems.

 At certain times in the steel making process, huge billowing clouds of dust, smoke, and other particles are spewed into the atmosphere, especially into the northern part of the first ward. However, the entire City of Lackawanna suffers from severe air pollution due primarily to the location of the Bethlehem Steel plant.

 Nevertheless, there is a sharp contrast between the first ward and the other two wards in the amount of pollution, housing problems, congestion, and other environmental factors. The series of railroad tracks running along the eastern boundary of the first ward practically separate the first ward from the remainder of the City. The only connection between the first ward and the rest of the City is the single, long Ridge Road bridge. The east-west thoroughfares, located in Buffalo to the north and Hamburg to the south, are some distance removed and do not provide an effective means of travel from the first ward to other areas of Lackawanna.

 The first ward is described in the Model City application which was prepared and submitted by the City of Lackawanna to the Department of Housing and Urban Development in 1967 in the following way:

 
"* * * This area is in very poor structural condition because of the age of dwellings and the poor environmental characteristics fostered by the Bethlehem Steel Company.
 
* * *
 
Visual evidence substantiates the belief that housing deterioration and overcrowding within the M.N.A. (Model Neighborhood Area -- first ward) are more than twice those of the city as a whole.
 
* * *
 
Another major contribution to the physical blighting of the area (M.N.A.) is the smoke which blows from the stacks of Bethlehem Steel, spreading dirt, dust and pollution throughout the area."

 The first ward has the oldest, most dilapidated housing, the highest residential density with the most housing units per acre, and it has the largest number of persons per housing unit. The Erie County Department of Health has classified the first ward as a "high risk area." There is a high infant mortality rate and tuberculosis is twice as prevalent as in the city as a whole. The juvenile crime rate is almost three times, and the adult crime rate is more than double, the city average.

 The worst section of the first ward for housing and air pollution is in the area north of Ridge Road. Recently, of 126 housing units in that area, 74% of them was inhabited by blacks. The best housing in the first ward is in Bethlehem Park in the southern part. This housing was established by the Bethlehem Steel Company as an all-white residential area for employees of the Lackawanna plant. Until very recently, no blacks were allowed to live there.

 In considering the issues in this case, the structure of city government and the duties of various city officials should be noted. A new Charter in 1964 considerably altered the makeup of city government. Under the old system, the mayor, elected for a two-year term, had a limited appointive power, no veto and, in the City Council, only voted to break legislative ties. At that time, there were four wards, each ward having one councilman. Because this system emphasized the role of the ward councilman, decision making reflected ward needs rather than the good of the City as a whole.

 Under the new Charter, each ward has a councilman elected for a two-year term. In addition, there are two councilmen-at-large, elected for four years, making up a legislative body of five. The mayor, elected for a four-year term, now has a greatly increased and more effective role in city government. He is empowered to appoint the Directors of Public Safety, Public Works, Development, and Parks and Recreation. Important to this case, he also appoints the members of the Planning and Development Board. As chief executive officer of the city, each department head reports to the mayor.

 Mayor Mark Balen became mayor on January 1, 1968. Since the early 60's, he was a councilman. He testified that the transition from the old system to the new required considerable adjustment because it was difficult for the citizens and the ward councilmen to become accustomed to the diminished role of the councilmen in city government. Before enactment of the Charter, it was not unusual for the councilmen to usurp normally executive or administrative roles of the officers of city government. The mayor felt that it would take citizens and city officials some time to become used to the new Charter.

 A particular question created by the change in the Charter was the power to approve new subdivisions. Under the old system, a subdivision was approved by a three-fourths vote of the Council. No standards for approval other than those exercised by the vote of the Council were set. What is now required for approval of subdivisions under the new Charter is confusing. The opinion of Frank Cipriani, Director of Development, is that the Planning Board has this authority, but such authority is not clearly set forth in the Charter or the Administrative Code. Furthermore, it was not clear from the evidence what standards govern the issuance of building permits.

 When Mark Balen assumed the office of mayor on January 1, 1968, he appointed Frank Cipriani Director of Development. The Director of Development is the Executive Director of the Planning and Development Board and also of the Zoning Board of Appeals. The composition of the Planning and Development Board is set forth in City Charter Chapter 8, Section 8.3. The board consists of seven members -- one councilman appointed by the City Council, one City official, and five citizen members to be appointed by the mayor to serve three-year terms. After Mayor Balen had completed his appointments to the board, four members of the board resided in the third ward, three in the second, and none in the first. There were no black members on the board.

 There are three low income housing projects in the City of Lackawanna, all located in the first ward. Baker Homes and the Gates Avenue Project are operated by the Lackawanna Municipal Housing Authority, and Albright Court is privately owned.

 The amount of vacant land left in Lackawanna is limited. Most of it is located in the third ward, and much of this is owned by the Catholic Diocese of Buffalo. The City owns 74 vacant lots in the second ward.

 PLANNING

 Various planning studies and reports were admitted into evidence for the light they shed upon the City's problems -- past, present, and future. Among the most important of these are: (1) The Model City application submitted by the City of Lackawanna to HUD on April 29, 1967; (2) The Master or Comprehensive Plan and supporting reports prepared by Patrick Kane of KRS Associates, Inc.; and (3) A Study of Parks and Recreation for Lackawanna, prepared by the National Recreation and Parks Association and finally submitted by a report dated June, 1968.

 The Model City application described all aspects of City life in detail. Housing supply and condition, public facilities, health services, educational services, the crime problem, social services, employment, and many other details of life in the City of Lackawanna were enumerated. The Model Neighborhood Area to which particular attention is paid in the application is the first ward. Some quotations from the application accent some of Lackawanna's problems:

 
"Lackawanna poses a unique problem in housing in as much as there is a physical boundary between the 'haves' and 'have-nots' in the city."

 The first ward area is described in this way:

 
"* * * There is a high percentage of Negro and other minority groups in this area. This adds to the difficulty of relocation since Lackawanna is in fact a segregated community."

 The Model City application was the source of much of the statistical information set forth in other parts of this decision.

 The Comprehensive Plan or Master Plan was prepared by Patrick Kane of KRS Associates, Inc., a planning consultant firm. The State of New York and Mr. Kane entered into a contract to provide professional assistance in the development of the Plan. His work on the Plan is carried out with the cooperation of HUD, State of New York, and City of Lackawanna officials.

 A Comprehensive or Master Plan, according to Mr. Kane, is a long-range statement of development goals for a municipality that uses an analysis of present conditions, determines the trends in the community, and forecasts its needs in relation to land use, community facilities, transportation networks, zoning ordinances, and capital improvement programs that relate to the goals of the community. However, the Plan is not fixed. The purpose of the Plan is to provide a general framework so that the City can make an intelligent and responsible decision relative to its development.

 Mr. Kane began his work early in 1966. He prepared a number of detailed studies and plans in conjunction with the development of the Lackawanna Comprehensive Plan. These documents covered such fields as land use, population trends, economic analysis, transportation and zoning. He met monthly with the Planning and Development Board and the Director. During 1966 and '67, the Director was Nicholas Colello. He was replaced on January 1, 1968 by Frank Cipriani. At each monthly meeting, Mr. Kane and members of the board discussed in detail the studies and report as they were being prepared.

 Mr. Kane presented three alternative land use plans to the board. Each plan designated the area south of Martin Road and east of the proposed McKinley extension as "residential -- low density" and some or all of the area south of Martin Road and west of the proposed McKinley extension as recreation space.

 Because of the poor environmental conditions, Kane wanted to restrict the residential use of the first ward as much as possible. However, because the board insisted upon keeping low densities in other parts of the City, he recognized that some residential use must be made of the first ward. The elimination of all residences in the first ward would create a difficult rehousing problem in Lackawanna because of lack of space in other parts of the City to provide housing at the densities required, and because of "the social problems which would result from the massive relocation of low income and minority groups into basically white and higher income areas of the City."

 However, Planner Kane repeatedly urged the board not to use the area north of Ridge Road for residential purposes. He pointed out that this area suffered from the worst air pollution, had the most run-down housing, that private developers probably would not build there, that it would be difficult to obtain financing, and that Ridge Road separated this small area from the rest of the community so that the residents there would not receive proper services. Further, he urged elimination of Bethlehem Park because it is surrounded by industrial, railroad, and commercial enterprise, it is separated from the rest of the City, and it is too small to support ...


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