UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
November 20, 1985
UNITED STATES OF AMERICA, Plaintiff,
YONKERS BRANCH-NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, et al., Plaintiffs-Intervenors, v. YONKERS BOARD OF EDUCATION; CITY OF YONKERS; and YONKERS COMMUNITY DEVELOPMENT AGENCY, Defendants (Part 1 of 3)
The opinion of the court was delivered by: SAND
LEONARD B. SAND, U.S.D.J.
[SEE ILLUSTRATION IN ORIGINAL]
After nearly one hundred days of trial, during which eighty-four witnesses testified and thirty-eight depositions, as well as thousands of exhibits, were received in evidence, this Court is called upon to decide whether the City of Yonkers and the Yonkers Board of Education have intentionally created or maintained racial segregation in the City's housing and schools. Before embarking on that task, we pause to make clear why that is the issue, and why it falls upon this Court to resolve it.
First, the primary issue in this case is whether the City of Yonkers and the Yonkers Board of Education intentionally segregated its housing and schools, since it is clear that by all relevant standards, Yonkers and its public school system are, in fact, racially segregated. The principal question in controversy is whether the segregated condition of the City's housing and schools resulted from the force of circumstances unintended by those who made the decisions which shaped the housing and schools of the community, or whether this condition resulted from an intent to segregate by race.
This Court is called upon to resolve this controversy because the United States Department of Justice has commenced and has maintained, through two administrations, an action alleging that the housing and schools in Yonkers have been intentionally segregated by race, and the Yonkers NAACP has intervened in that action.
The action was brought after efforts at conciliation of the "schools" portion of this litigation failed but with the assurances (made to Yonkers and to this Court by the plaintiffs and the Board of Education) that the initiation of this suit would not end efforts to resolve this controversy consensually.
Mindful of the cost which this litigation has entailed,
the divisiveness which it has engendered, the need for community support for voluntary remedial action to be successful -- in short, the overall desirability of a resolution which originated with the parties themselves -- more than the usual efforts at settlement were made. This included appointment of a Special Master, whose sole function was to attempt to bring the parties to a consensual resolution. See separate Opinion filed this date. By the closest of margins, the fruits of these efforts, an agreement among the Board of Education, the United States and the NAACP, conditional upon funding by the City Council, was rejected by that body. Hence, all efforts to consensually resolve this matter having failed, the task is ours and we shall proceed to discharge it.
We set forth below, in detail commensurate with the voluminous and complex nature of the record, the findings of fact and conclusions of law which lead to our determination that the plaintiffs have sustained their burden of proving that Yonkers' housing and schools have been intentionally segregated by race. In performing this inquiry, we have examined the actions of many officials who we are certain were entirely well-meaning public servants acting in accordance with their perception of what was feasible in the political and socioeconomic circumstances of Yonkers and in the best interests of that community. In many instances, acts were taken by elected officials in response to strong constituent pressures and perceptions of political reality. Members of the Board of Education also acted under similar circumstances. We are not passing moral judgments with respect to the actions of those who steered the destiny of Yonkers; nor do we suggest that the implementation of measures contrary to the political climate of the times would have been an easy task. Our inquiry is whether, under applicable legal standards, actions taken by the City of Yonkers and the Board of Education, with respect to housing and public schools, were in whole or in part intentionally segregative. We find that they were, for the reasons set forth below.
The City of Yonkers is one of the five largest cities in the State of New York. Its population, according to 1980 census figures, is 195,331. Yonkers is located in Westchester County and is bounded on the west by the Hudson River, on the east by the Bronx River, on the south by the City of New York, and on the north by the Village of Hastings-on-Hudson and the Town of Greenburgh. The City is approximately three to three and one-half miles wide, four to six miles long, and encompasses some eighteen to twenty square miles. It is divided lengthwise by a series of ridges and valleys which run north to south, roughly parallel to the Hudson River. The Saw Mill and Nepperhan Rivers flow through the more western valleys.
Over the course of the nineteenth century, Yonkers evolved from what was primarily a farming village into a significant industrial and commercial center. This development was concentrated in the Southwest section of the City in the areas along and between the Nepperhan, Saw Mill and Hudson Rivers, and along the Hudson River Railroad, which opened in 1849. Factories were built along the rivers, and a central commercial district, known as Getty Square, developed between the factories and along the railroad. From the latter portion of the nineteenth century up to World War II, Getty Square was the hub of commerce for Westchester cities along the Hudson as far north as Peekskill. With the factories, came large amounts of worker housing -- generally poor in quality and heavily clustered in the valleys of the Southwest section of the City. The Northwest and East sections of Yonkers remained largely rural until the early 1920s when the Saw Mill River Parkway opened and a pattern of low density suburban housing development began. The pattern continued and accelerated with the construction of the Harlem Division Railroad, the Bronx River Parkway, the New York State Thruway, and the Sprain Brook Parkway -- all of which run in a north-south direction and provide commuters with easy access to New York City.
The three decades following World War II were the time of greatest housing development in Northwest and East Yonkers. Initially, the primary form of development was the single family housing subdivision. Somewhat later, in the 1960s and 1970s, multi-family apartment buildings were built in increasing numbers along the major arterial routes and the commuter rail lines.
As the Northwest and East sections of the City expanded, however, the Southwest entered a period of decline. The housing stock deteriorated, and was not replaced or renovated on any significant scale. In 1954, with the closing of the Alexander Smith Carpet Mills, the Southwest's largest employer, the area began to lose its industrial base. In addition, the Getty Square central business district began to stagnate, a phenomenon attributed primarily to lack of adequate highway access and parking, and to increased competition from shopping malls such as the Cross County Shopping Center.
In 1949, with the passage of the National Housing Act of 1949, the City embarked upon a series of urban renewal and subsidized housing programs that have continued to the present day. Both programs have been largely confined to the Southwest section of the City. As of 1949, the City had two subsidized housing projects (the 550-unit Mulford Gardens and the 250-unit Cottage Place Gardens), both of which were located in Southwest Yonkers. Between 1949 and 1982, thirty-six more subsidized housing projects were developed, thirty-four of which are also located in Southwest Yonkers.
The two exceptions are Curran Court, a 186-unit project for senior citizens on Martin Ray Place in East Yonkers, and Hall Court, a 48-unit project for families in an East Yonkers neighborhood known as Runyon Heights. In all, the Southwest contains 6,644 or 97.7% of the City's 6,800 existing units of subsidized housing.
The extreme concentration of subsidized housing that exists in Southwest Yonkers today is matched by an extreme concentration of the City's 18.8% minority population.
According to 1980 census figures, Southwest Yonkers accounts for 37.5% of the City's total population, but contains 80.7% of the City's minority population. Seven of the Southwest's seventeen census tracts have a minority population greater than 50%. Six more have a minority population ranging between 25% and 50%. None has a minority population that is less than 9%.
In contrast, only two of the thirty-two census tracts outside the Southwest have a minority population greater than 6%. One is census tract 7, whose 28.6% minority population is clustered in the southern end of the tract, where it abuts Southwest Yonkers and along the Hudson Division Railroad on the western edge of the tract.
The second is census tract 18 in East Yonkers, which contains Runyon Heights, a longstanding enclave of black home owners, and the site of Hall Court, the only subsidized housing project for families that is located outside Southwest Yonkers. The minority population of census tract 18 is 79.8%. The remaining thirty census tracts have minority populations ranging from 1.5% to 6.0%, with half having less than 3%. GX 1225.1, 1225.6.
II. STATEMENT OF CLAIMS AND LEGAL STANDARDS
Plaintiffs contend that the existing concentration of subsidized housing in Southwest Yonkers reflects a pattern and practice of housing discrimination by the City in violation of Title VIII of the Civil Rights Act of 1968 (also known as the Fair Housing Act)
and the equal protection clause of the fourteenth amendment to the United States Constitution.
Specifically, plaintiffs contend that City officials, in response to constituent pressures, have made the preservation of existing patterns of racial segregation a controlling factor in site selection for subsidized housing. According to the plaintiffs, subsidized housing for families has been equated with minority housing, and for that reason, has been confined to the disproportionately minority areas of the City -- most often, the downtown area of Southwest Yonkers. Subsidized housing for senior citizens is alleged to have been less consistently identified with minority housing, and therefore less consistently confined to minority areas. Nonetheless, according to plaintiffs, it, too, has met racially influenced resistance from area residents, often based on the concern that it might be converted to housing for families. Plaintiffs contend that the Saw Mill River Parkway has been viewed as the barrier separating overwhelmingly white East Yonkers from the racially mixed (and, since the mid-1960s, increasingly minority) population of Southwest Yonkers, and that City officials have been consistently unwilling, even when strongly pressed by federal authorities, to breach that racial barrier by placing subsidized housing for families east of the Saw Mill River Parkway.
The City, in turn, contends that its selection of sites for subsidized housing has been in no respect discriminatory, and that any segregative effect which the site selections may have had was entirely unintended. In particular, the City insists that the extreme concentration of subsidized housing in Southwest Yonkers reflects only a consistent strategy, adopted for reasons unrelated to race, to use subsidized housing to help rebuild Southwest Yonkers. In defense of that strategy, the City argues that it was recommended by outside consultants as well as by its own planning staff, and that it was consistent with, and indeed even encouraged by, federal housing and urban renewal policy.
As the contentions of the parties suggest, the primary focus of the inquiry now before us is whether the actions challenged by plaintiffs were undertaken with discriminatory intent -- specifically, the intent to create or maintain racial segregation. An action which merely has the unintended effect of creating or maintaining racial segregation violates neither the Constitution, Village of Arlington Heights v. Metropolitan Housing Development Corporation, 429 U.S. 252, 264-65, 50 L. Ed. 2d 450, 97 S. Ct. 555 (1977) (Arlington Heights I) (citing Washington v. Davis, 426 U.S. 229, 48 L. Ed. 2d 597, 96 S. Ct. 2040 (1976)), nor, except in certain limited circumstances, the Fair Housing Act.
A plaintiff is not required to prove, however, that segregative intent was the sole or even primary motive underlying the defendant's actions. Indeed, as the Supreme Court noted in Arlington Heights I, [r]arely can it be said that a legislature or administrative body operating under a broad mandate made a decision motivated solely by a single concern, or even that a particular purpose was the "dominant" or "primary" one. In fact, it is because legislators and administrators are properly concerned with balancing numerous competing considerations that courts refrain from reviewing the merits of their decisions, absent a showing of arbitrariness or irrationality. But racial discrimination is not just another competing consideration. When there is a proof that a discriminatory purpose has been a motivating factor in the decision, this judicial deference is no longer justified.
429 U.S. at 265-66 (footnotes omitted).
A policy of racial segregation, in other words, is impermissible even as a secondary motive for action, and "cannot be justified by the good intentions with which other laudable goals are pursued." Gautreaux v. Chicago Housing Authority, 296 F. Supp. 907, 914 (N.D.Ill. 1969), (citing Brown v. Board of Education, 347 U.S. 483, 98 L. Ed. 873, 74 S. Ct. 686 (1954)); see also Cooper v. Aaron, 358 U.S. 1, 16, 3 L. Ed. 2d 5, 78 S. Ct. 1401 (1958) (quoting Buchanan v. Warley, 245 U.S. 60, 62 L. Ed. 149, 38 S. Ct. 16 (1917)); United States v. City of Parma, 494 F. Supp. 1049, 1054 (N.D.Ohio 1980), aff'd in relevant part, 661 F.2d 562 (6th Cir. 1981), cert. denied, 456 U.S. 926, 102 S. Ct. 1972, 72 L. Ed. 2d 441 (1982).
The factors that are to be considered in determining whether actions were taken with discriminatory intent include the degree of any discriminatory effect; the historical background of the actions; the specific sequence of events leading up to the actions; the presence or absence of departures from normal procedures or substantive criteria; and the legislative history of the actions. Arlington Heights I, supra, 429 U.S. at 266-68.
To prove a pattern and practice of discrimination, a plaintiff must prove that it was a regular (although not necessarily uniform) practice of the defendant to act with discriminatory intent. See United States v. City of Parma, supra, 494 F. Supp. at 1095. And in determining whether the plaintiff has carried that burden of proof, the court must view the evidence as a whole. Id. at 1055 (citing cases). As the District Court for the Northern District of Ohio explained in United States v. City of Parma : 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... Even intrinsically lawful acts may close that character when they are constituent elements of an unlawful scheme. Id. (citations omitted). In large part, this rule is no more than a reminder of the general rule of evidence that when actions having a particular effect are repeated, the inference is stronger that the effect of the actions was intended. See 2 Wigmore, Evidence § 312 (3d ed. 1940).
III. THE CITY'S EARLY ACTIVITIES UNDER THE NATIONAL HOUSING ACT OF 1949
Upon passage of the National Housing Act of 1949, the City of Yonkers quickly applied for the federal housing assistance made available under Title III of the Act, and just as quickly encountered a serious obstacle to its ability to make use of the assistance. The City's announcement of the first proposed site for a public housing project to be funded under the Act (a site in Northwest Yonkers) prompted immediate and strong opposition from area residents and civic associations. The phenomenon was one which would repeat itself with respect to most of the other sites subsequently proposed, and would strongly influence the willingness of the Planning Board and the City Council to approve the sites. The result was the loss of available and badly needed federal housing assistance, the repeated compromise of stated planning objectives, and, eventually, endangerment of the City's entire urban renewal program due to the City's consequent inability to provide relocation housing for those displaced by urban renewal. The sites that prompted community opposition almost invariably were those in overwhelmingly white East and Northwest Yonkers or the overwhelmingly white areas of Southwest Yonkers. The few sites that appear to have prompted little or no community opposition, and that successfully emerged from the site selection process, tended to be in the more heavily minority areas of the City -- and in particular, in and around the downtown area of Southwest Yonkers.
A. THE PROCEDURE FOR THE SELECTION AND APPROVAL OF SITES FOR PUBLIC HOUSING
Title III of the National Housing Act provides funds for the construction of public housing -- that is, low-income housing owned and operated by a local housing authority.
Under the Act, the housing authority applies for a "reservation" of funds sufficient to build a certain number of housing units. Sites are then selected by the housing authority, submitted for any necessary local approvals, and once locally approved, submitted to the federal authorities.
The agency authorized to proposed, construct, and operate public housing in Yonkers is the Yonkers Municipal Housing Authority ("MHA"), a public corporation organized in the 1930s pursuant to New York's Public Housing Law. Under that law, any projects undertaken by the MHA must be approved by a majority vote of both the City's Planning Board and the City Council, or (if the Planning Board disapproves), by a three-quarters majority of the City Council.
The City Council consists of twelve members plus the Mayor, all of whom are elected for two-year terms. Throughout the years in question, each of the City's twelve wards held a separate election to choose a representative on the Council. The only member chosen in a city-wide election was the Mayor, who serves on the Council as a Councilmember-at-large.
The Planning Board and the MHA Board each consists of seven members. Planning Board members are appointed by the Mayor; MHA Board members are appointed by the City Manager, who, under the City Charter, is the Chief executive and administrative officer of the City, and who, in turn, is appointed by the City Council.
B. SITE SELECTION FOR THE CITY'S 1949 ALLOCATION OF PUBLIC HOUSING UNITS
City officials were eager to take advantage of the housing assistance made available under Title III of the 1949 Housing Act. Due to the rapidly deteriorating condition of the housing stock in the Southwest, there was, in general, a serious need for decent low-cost housing in Yonkers. In addition, the construction of public housing was perceived to be important to the urban renewal plans which the City had begun to formulate in response to the urban renewal assistance made available by Title I of the 1949 Act.
Title I established a program of loans and capital grants for slum clearance and redevelopment; the program contemplated that cities would acquire and clear blighted land, prepare the site, and then sell or lease it to private enterprises for redevelopment. Title I also required, however, that the cities provide "decent, safe and sanitary" housing for persons displaced from urban renewal areas, and city officials considered public housing to be the only likely source of relocation housing for families living in urban renewal areas. GX 1058.16.
In August of 1949, a few months after the passage of the 1949 Act, the City applied for a reservation of 1,000 units of public housing, and received an allocation of 750 units. The deadline for site submission was August of 1950. It took the City nine years, however, to approve a sufficient number of sites to make use of that first year's allocation of public housing units, and the chief reason for the delay was recurring community opposition to the various sites proposed.
The MHA announced its first proposed site in February of 1950. The site was a vacant parcel of land on Nepperhan and Roberts Avenue, an overwhelmingly white area in Northwest Yonkers. GX 1225.41. Among the stated reasons for the selection of the site was that the use of vacant land (as opposed to a site which required clearance of existing structures) was less costly and would eliminate the need for relocating those displaced by the clearance of the site -- a task that had proven to be a major obstacle to the timely completion of Cottage Place Gardens, the second of the City's two existing public housing projects. GX 1058.5; 1053.27.
Within a week of the MHA's announcement of the Nepperhan/Roberts site, however, a neighborhood group called the Rose Hill Community Association adopted a resolution opposing the choice. Copies of the resolution were sent to the MHA, the City Planning Board and the City Council. GX 1058.6, 1058.9. A few days later, the Yonkers Council of Civic & Taxpayers Associations joined the opposition. GX 1058.8. The Rose Hill resolution urged that public housing be used to clear slums, and it maintained that the Nepperhan/Roberts site was, in any case, inappropriate for public housing due to inadequate school, transportation, and shopping facilities. "Locating this project in a present slum area," the resolution added, "would not have a school problem as the school probably already exists." GX 1058.9. The Nepperhan/Roberts site was subsequently disapproved by the Planning Board, GX 1058.17, an action which prompted a letter of commendation from the Yonkers Council of Civic & Taxpayers Associations. GX 1058.22.
At least two other sites formally proposed by the MHA soon thereafter likewise prompted strong community opposition. Indeed, the volume of complaints received by the Mayor's office with respect to the various sites being considered for public housing was so great that two members of the City Council were appointed to attend MHA meetings, consult with the MHA Board, and in general "let the public know that the [City] Council [had] an interest" in site selection. GX 1204.4.
The two sites in question -- Park Hill Avenue at Van Cortlandt Park Avenue and Lake Avenue -- were both in heavily white areas of Southwest Yonkers. GX 1225.41. In addition, both were originally supported by the councilmen representing the wards in which the sites were located (the seventh and sixth wards respectively), and then subsequently opposed by those councilmen, after local residents had made their own opposition known. Seventh ward residents appeared at a Planning Board meeting held to consider the Park Hill Avenue site and submitted a petition in opposition. A resident identifying himself as a spokesman for the group stated that "it was not in the best interests of the City of Yonkers and certainly not to the best interests of adjacent property owners, to place this project on this site." GX 1058.24. The resident contended that the "terrain [was] irregular" and that the project "would have a tendency to harm property values in the neighborhood...." Id. A few days later, a new article reported that the councilman for the seventh ward, who had previously asked that his ward be surveyed for possible sites, had written to the Chairman of the City Planning Board (with a copy to press), asking that the Park Hill Avenue site be excluded from consideration and expressing his disappointment that the Nepperhan/Roberts site in Northwest Yonkers had been rejeced rejected. GX 1058.25. No further action was taken on the seventh ward site.
Similarly, a site on Lake Avenue in the sixth ward was originally recommended by the ward councilman and approved by the Planning Board and City Council. GX 1058.31, 1058.37, 1058.43, 1058.47. A subsequent attempt to expand the site, however, resulted in strong public opposition to both the expansion and the site itself. Representatives of an ad hoc committee of sixth ward residents appeared at a Planning Board meeting to present a petition in opposition and to speak against the site. GX 1058.47. The committee's objections were repeated at two additional Planning Board meetings held several weeks later, at which time the ward councilman announced that he, too, was now opposed to the site. GX 1058.48; GX 1058.51. The Planning Board voted unanimously to disapprove the requested extension, and the following week the MHA voted to abandon the site. GX 1204.6. Area residents appeared at the MHA meeting with a petition bearing 1,000 signatures which, they maintained, "barely scratch[ed] the surface of those who object to the site." Id. A spokesman for the protesters mentioned in passing the inadequacy of school and transportation facilities, but then characterized those as "minor objections," and stated that the "real objection" to a housing project on the site was the effect that it would have on property values in the area. He predicted that it would cause "financial ruin" to neighboring property owners. Id.
By December of 1950, three months had passed since the deadline for submitting sites for the City's 1949 allocation of 750 public housing units, yet the City had approved and put into development only one site. The site was on Palisade Avenue, in one of the more heavily minority areas of Southwest Yonkers, slightly to the south of, and halfway between, the City's two existing public housing projects. GX 1225.41. The site had apparently prompted no public opposition, and although the City's Planning Director had suggested that the site was better suited for industrial use, it had been approved and was scheduled for 274 units of public housing. GX 1058.37; 1058.38.
In December, a federal official appeared at a meeting of the MHA and told the City that it faced imminent loss of the nearly 500 units remaining in its reservation unless additional units were put into development immediately. GX 1204.7. The official also cautioned that funding decisions for future years would take into account whether the City had been able to make use of previous allocations. Id. The City responded by voting to increase the number of units scheduled for the Palisade Avenue site to 415, despite a prior recommendation by the Planning Board that the size of public housing be limited to 250 units so as "to reduce their impact on the neighborhoods where they are located" and so that they might "be better integrated with other types of housing existing or to be built in the project areas." GX 1058.16 at 11767. When the 143-unit Schlobohm Houses opened on Palisade Avenue, all of the City's 1,213 units of public housing were concentrated within several blocks of each other in Southwest Yonkers.
In 1951 through 1953, efforts continued to find approvable sites for the more than 300 public housing units remaining in the City's 1949 allocation. Eleven sites were formally proposed by the MHA (six in the Southwest, two in the Northwest, and three in East Yonkers), but none was approved and submitted to the federal authorities, and the remaining units of public housing were lost by the City when the funding legislation expired in 1953.
Once again, the period was characterized by pervasive community opposition to the various sites proposed. City officials were heard to observe during these years that there seemed to be opposition to every site proposed, GX 1058.65, that "[s]ome civic organizations are in favor of public housing as long as you don't put it in their neighborhood," GX 1059.4, and that the more time that was given to the consideration of a site, the more objections there were. GX 1204.13. The Yonkers Council of Civic & Taxpayers Associations meanwhile continued to urge that public housing be used solely to clear slums, GX 1058.102; 1059.6, and it was joined in that position by other residents, GX 1059.1; 1058.86, and even, on occasion, by some councilmen. GX 1204.13.
At least eight of the eleven sites formally considered during these years (including all three east side sites) prompted opposition from area residents, local civic associations, and ward councilmen.
And once again, a dominant concern -- particularly in connection with the sites proposed in East Yonkers -- was the effect that a public housing project would have on surrounding property values.
With respect to one East Yonkers site, for example, a letter sent to the Planning Board and quoted by the press objected to the prospect of being "uprooted" from the neighborhood and stated that it was "a well-known fact that slum-clearance projects often lead to the eventual deterioration of the surrounding community by the element which they attract." GX 1059.5. Various neighborhood associations likewise contended that selecting one of the East side sites proposed "would be seriously detrimental to [the] well-being ... and interest" of area residents and indeed of the City as a whole. GX 1059.7; see also GX 1059.6; 1059.8; 1059.9. The president of one of those associations suggested to the City Planning Board that the East side sites under consideration should be reserved for the same "class of people now there," GX 1059.9, and argued that the "people a public housing project would serve" would in any case find it burdensome to travel to East Yonkers. Id.
Edward O'Neill, the councilman for the East side ward in which the proposed sites were located, likewise argued strongly against their appropriateness for public housing. Soon after the sites were announced, O'Neill publicly declared that he was "not opposed to low-rent housing, but it was inconceivable to [him] that it should be located in areas where there is no possible need for it and where those areas cannot possible handle it." GX 1059.6. O'Neill noted that "practically every civic and social group in [his own and a neighboring East side] ward has gone on record strongly opposing the location of low rent housing on premium land," and that since the East side schools were already overcrowded, the addition of 335 families "would cause irreparable harm." Id. In addition, O'Neill appeared at a Planning Board meeting held to consider the sites and argued that putting public housing in "fine, residential" communities would be "a body blow to [the City's] finances." GX 1059.9; GX 1059.10. O'Neill appealed to the Board "as property owners," suggesting that they surely knew what public housing does to the surrounding areas. If you put housing in an area not desirable for it you do a disservice to the people in that neighborhood. Many people have sunk their last cent into their homes. GX 1059.10.
Like the sites opposed by area residents in 1950, the eight sites opposed in 1951 through 1953 all were in areas of the City that were overwhelmingly white. GX 1225.41. Two of the three sites for which there is little or no evidence of opposition -- including one (the Waring site) which was strongly supported by some civic associations and councilmen as "ideal" for public housing -- were in the downtown (and more heavily minority) portion of Southwest Yonkers. Id.17 MHA members characterized the Waring site as a "realistic" choice that had the "greatest chance" of winning City Council approval and proposed it twice as the final deadline for site submission drew near in 1953. GX 1059.4; 1204.18. The Planning Board, however, rejected the site each time, explaining that it was poorly situated for residential use and in an area that was already overcongested. GX 1059.11; 1059.17.
In 1956, under new funding legislation, the City was able to renew its reservation of the 335 public housing units remaining in its 1949 allocation. However, when site selection efforts resumed in 1956, the pattern of community opposition resumed as well. Despite formal consideration of at least eight sites in 1956 and 1957, and despite repeated expressions of concern by City officials that readily available housing assistance might once again be lost, and that the City's urban renewal plans might be delayed for lack of relocation housing, see e.g., GX 1060.16; 1060.23; 1060.25; 1060.41; 1062.2; 1062.19, the City did not approve a single site for public housing.
Four sites (two in Southwest Yonkers and two in East Yonkers) were formally proposed by the MHA in 1956. Three prompted vigorous community opposition; the fourth (Western Avenue in Southwest Yonkers) was opposed by the Planning Board on the ground that it was in the path of a proposed arterial route. None was approved by the City Council.
With respect to two of the three sites that prompted community opposition -- St. Nick's Oval in East Yonkers and a site on Fillmore and Garfield Streets in Southwest Yonkers (commonly known as the Russian American Memorial Park or RAMP site) -- the pattern was the same as in previous years. The sites were in overwhelmingly white neighborhoods, GX 1225.41, and were vigorously opposed by area residents and neighborhood associations at rallies and in petitions and letters. See generally GX 1060.
The third site, however, presented a variation on the theme. The site (Ridgeview Avenue) was in Runyon Heights, a long-standing and self-contained enclave of black homeowners in East Yonkers, and its proposal produced the first apparent evidence of open discussion of the racial implications of site selection for public housing. An attorney for one of the Runyon Heights neighborhood associations told the City Council that the trend had moved "away from putting housing sites in minority areas, as it has a tendency to create slums" and argued that the City "must give this area a chance to break its bounds," saying that "if we drop a housing project in there, it will never have a chance." P-I 105-17. A spokesman for the Yonkers branch of the NAACP similarly declared that the organization was "disturbed" to find a project being proposed for an area that was so heavily minority, warning that the project could become a "Negro project" and the school that served it a "Negro school." Id. A representative of the Urban League of Westchester County also appeared before the City Council and opposed the project, arguing that studies had shown that when a housing project was put in a predominately black area, it became "difficult to obtain [a] nonsegregated occupancy." Id.
At two City Council sessions attended by some 400 to 1,000 area residents, the Council voted to disapprove all three sites -- actions which reportedly prompted applause and cheers from the audience. GX 1060.23; 1060.40; P-I 105-42. Although the votes were unanimous, there were expressions of concern by some council members about the effect of the votes since the new deadline for site submission was only a few days away. Id. As the last site (St. Nick's Oval) was disapproved, one councilman observed that he felt the vote was "signing the death knell" for the city's reservation of housing units, and that the City could not hope to obtain urban renewal funds unless it had a place to relocate displacees. P-I 105-42.
However, the City was able to obtain yet another extension of the deadline, and site selection efforts continued. In 1957 and 1958, community opposition was a frequent topic of discussion in site selection meetings and press reports. See generally GX 1062, 1063. In January of 1957, for example, the councilman for the fourth ward proposed a tenth ward site, saying that its relatively isolated location made it "a natural" for public housing since "no indignant citizens could come and protest." GX 1062.1. Protests were reported, however, by the tenth ward councilman, who promised to defeat the proposal. GX 1062.3, and the MHA voted unanimously to reject the site. GX 1062.5.
Meanwhile, two Southwest Yonkers sites were proposed by private developers for Mitchell-Lama projects, a state-funded subsidized housing program for middle-income (and, therefore, usually white) residents. The proposals prompted no opposition, and the City Council readily approved the tax abatements needed to enable the two projects -- Sunset Green (a 70-unit cooperative on Hawthorne Avenue) and Sunnyside Manor (a 121-unit rental building on Sunnyside Drive) -- to go forward. GX 1061; 1066.
In the spring of 1958, the MHA tried again and proposed five more sites for public housing. Three were in Southwest Yonkers (Stanley Avenue; School Street; and Western Avenue); and two were in East Yonkers (the old School 1 site and Smart Avenue). GX 1063.2. Emmett Burke, the Secretary-Director of the MHA, described the sites to the Planning Board as "the least objectionable" of those surveyed but nonetheless that there would be "a lot of objections on the grounds of race or age in certain sites." GX 1063.8. Burke went on to observe that "[m]any people simply do not want public housing." Id. The Planning Board approved the Stanley Avenue, Smart Avenue, and School 1 sites, and disapproved the School Street and Western Avenue sites (the latter for the second time) on the ground that lay in the path of a proposed arterial route. Id. Two of the sites approved by the Planning Board were in overwhelmingly white neighborhoods; the third (the School 1 site) was in Runyon Heights. GX 1225.41.
In April, as the City Council was preparing to consider the proposed sites, a letter was sent to the council members from a committee claiming to have been delegated by twelve taxpayer and civic associations "to acquaint each and every member of the [City] Council with the fact that there is tremendous opposition to additional low rent public housing in Yonkers." P-I 106.26 (GX 1063.13). The letter went on to state that:
We personally prefer a public referendum with time to acquaint each and every citizen wit the full facts on public housing. Where will these tenants come from? How will we provide schools? How much will it cost us over the years? What safeguards do we have against our having to absorb the overflow from Puerto Rico or Harlem? Where will the people go that will have to vacate their private homes? Id. The letter closed by saying that "each and every one of your constituents is looking to you to again knock down this latest attempt on the part of the public housing group to shove off on the citizens of Yonkers something that the majority does not want." Id. A week later, the City Council voted to refer the proposed sites to its committee on housing. GX 1065.15.
The following month, as the Council again prepared to vote on the sites, Mayor Kristensen publicly observed that "we're running into the same situation we customarily do and have done over the past nine years or so, that is, everyone wants housing, but no one wants it in his neighborhood.... The time is coming when we are going to get those 335 units one way or another." GX 1063.17.
On May 27, 1958, nearly nine years after the City received its 1949 allocation of public housing units, the City Council finally approved two sites for the last of the units in the allocation. In addition, a third site was approved for 108 units of senior citizen housing (a newly authorized form of public housing). The three sites approved were School Street and the School 1 site for family housing and the Western Avenue site for senior citizen housing. GX 1063.18.
In making its choices, the Council appears to have given little weight to the views of its Planning Board. The School Street and Western Avenue sites were strenuously lobbied against by the Planning Board on the ground that they would interfere with construction of an arterial system that was critical to the future health of the downtown area. GX 1063.8; 1063.17; see also Tr. 9621-24 (Pistone). Yet, both sites were approved by the Council.
In addition, the Planning Board recommended the Stanley Avenue and Smart Avenue sites -- and indeed the City's Planning Director, Philip Pistone, had characterized the latter as "ideal." GX 1063.8; Tr. 9616-17 (Pistone). Yet, the Smart Avenue site was strongly opposed by area residents and the ward councilwoman, and both sites were rejected by the Council. GX 1063.8; 1063.18; 1063.19.
Following a by-now familiar pattern, the sites rejected were in overwhelmingly white areas of the City, and both sites approved for family housing were in heavily minority areas. GX 1225.41. Only the Western Avenue site which was to be used for senior citizen housing was in a heavily white area, and even that site was not far from blocks with a significant minority population. Id.19
C. Site Selection for Senior Citizen Housing
For the next few years, the City focused primarily on public housing for senior citizens -- an activity that proved somewhat less controversial but not entirely problem-free. In 1961, a proposal to put 300 units of predominantly senior citizen housing on Garden Street just north of Schlobohm Houses (the 413-unit project built on Palisade Avenue in the early 1950s) was approved with no apparent community or official opposition, GX 1064.1-.5, despite that fact that with Schlobohm Houses in place, the area already contained an amount of public housing that was far in excess of what the Planning Board had recommended. See, HOUSING III.B supra. A subsequent attempt to expand the site in 1962, however, did prompt opposition on the ground that it would result in an overconcentration of public housing units in the area. GX 1064.14, 1064.15, 1064.19. The Planning Board initially disapproved the expansion, then three months later voted 3-2 (with two members absent) to reverse itself. GX 1064.16; GX 1064.19; 1064.20. A colloquy that immediately preceded the second vote suggests that little had changed from the preceding years. Planning Director Philip Pistone stated that he would prefer to have senior citizen housing "dispersed," and that there was "no reason why it should all be concentrated in one area ... one ward." GX 1064.20. In response, a Board member stated simply that, "what you say is interesting, but when you come up before the [City] Council, every councilman objects to it." Id. The Planning Board's vote was subsequently challenged and held invalid on the ground that the full Board had not been present. GX 1064.21; GX 1064.23. The City Council then deferred consideration of the expansion, and it was apparently pursued no further. GX 1064.24.
Instead, a new round of efforts was undertaken to find sites for senior citizen housing. In February of 1963, the MHA proposed eight sites -- four in Southwest Yonkers and four in East Yonkers. GX 1069.7.
The sites were announced as proposed sites for senior citizen housing, but the Secretary-Director of the MHA was quoted by the press as saying that the sites might also be considered for family housing. GX 1069.7. Protests quickly arose with respect to three of the East side sites, and these sites were largely dismissed by the MHA's Secretary-Director at a subsequent Planning Board meeting. GX 1069.10; 1069.11; 1069.13; 1069.15. The Lincoln Park Taxpayers Association, writing in opposition to the sites, raised familiar concerns about decreasing property values and adverse effects on the "character of the community." GX 1069.11. The Association urged, as other groups had in the past, that public housing be used solely to clear slums. Id. No distinction was drawn between public housing for senior citizens and public housing for families. Concern was simply expressed that the placement of any public housing in the area would be "at the sacrifice of real estate values in the community, and [that] declining real estate values would be followed by neglect and deterioration of the neighborhood." Id.
The following month, in early March of 1963, the Housing Committee of the City Council recommended approval of two of the other sites for senior citizen housing -- Martin Ray Place in East Yonkers (where temporary veterans housing had been located) and a site on Ashburton Avenue and Seymour Street in Southwest Yonkers -- and the Council scheduled a site selection hearing for March 26th. GX 1069.20. The next day, the MHA withdrew the remaining six sites from consideration. GX 1069.21.
In the weeks before the hearing, the Board of Education and the PTA opposed selection of the Martin Ray Place site on the ground that it had been promised to the Board for a much needed expansion of School 31. GX 1069.22; 1069.25. In addition, the Pastor of St. Joseph's Church opposed the selection of the Ashburton/Seymour site on the ground that there was already a serious overconcentration of public housing in the downtown Southwest Yonkers area. GX 1069.24. Both protests were reiterated at the City Council hearing. GX 1069.26; 1069.28. No neighborhood or civic associations appear to have joined the opposition, however, and faced with a firm site selection deadline of April 1 (the deadline having already once been extended), and with a reported 1,800 to 2,000 applications for senior ciizen citizen housing, the Council voted to approve both sites. GX 1069.27; 1069.28. The thirty-two unit Kristensen Houses (on Seymour Street) and the 186-unit Curran Court (on Martin Ray Place) opened in 1967. C-1700.
D. The City's Campaign to Produce Sites for Relocation Housing
From 1958 (when the last of the City's 1949 allocation of public housing units for families was finally put into development) through 1965, no apparent efforts were made to increase the City's stock of public housing for families. The only additional family housing approved during this time came with the decision to devote the City's Jefferson-Riverdale (or "Stage I") urban renewal area (an area just southwest of City Hall in downtown Yonkers) to middle-income housing. In the spring of 1962, the City Council approved, without apparent objection, a tax abatement for a 544-unit Mitchell-Lama project to be called Phillipse Towers, GX 1067.5; 1067.11, and the project opened in September of 1964. GX 1067.13.
The City's long period of inactivity with respect to the development of low-income family housing does not appear to have been based on any perception that what had been characterized as a "desperate" need for such housing -- both in general and as a relocation resource -- had been met. A strong indication that the need had not been met came in 1965, when HUD notified the City that its preliminary application for its Stage II (or "Riverview") urban renewal project had been rejected. The project would have involved the relocation of 1,300 families, and was rejected on the ground that the City's relocation track record for the Stage I project had been poor. HUD set a maximum relocation workload of 300 families for the Stage II project. GX 1071.13; 1078.4. In response, the City embarked on a vigorous campaign to find and approve sites for family housing. Joining in the effort was the newly formed Yonkers Urban Renewal Agency ("YURA").
As in previous years, however, community opposition proved to be a major stumbling block.
In the months after HUD rejected the City's initial Stage II urban renewal application, the need for more public housing as a source of relocation housing, and the problem of persistent community opposition to sites proposed for such housing, were frequent topics of discussion in meetings held among City agencies and with the federal authorities. See generally GX 1078. In one meeting, the Mayor was asked to explain the nature of the City Council's objections to two Southwest Yonkers sites (one between Stanley and Riverdale Avenues and another on Culver Street). GX 1078.3. The Mayor replied that the two ward councilmen involved "feel that their wards are being declared 'blighted areas' and they are not too happy about it because it will affect the voting." Id.
A subsequent meeting in April of 1965 among George Piantadosi (the acting director of YURA), Philip Pistone (the City's Planning Director), and Emmett Burke (Secretary-Director of the MHA) yielded a list of twelve possible sites for public housing. GX 1078.8.
In an apparent attempt to deflect potential opposition to the sites, it was agreed that a press release would be issued listing the sites but identifying them merely as "sites under discussion," and that no individual would be identified on record as supporting specific sites. Id.
The anticipated opposition came to pass the following month. The MHA submitted eleven sites (nine from the joint list plus two others) to the Planning Board and the City Council. GX 1078.12; 1078.21.
The three East Yonkers sites on the list as well as two sites in the overwhelmingly white Nodine Hill area of Southwest Yonkers prompted letters and petitions in opposition from area residents, civic associations, and (in the case of the two East side sites in the twelfth ward) from the ward councilman, Nicholas Benyo. GX 1078.15; 1078.17-19; 1078.23; 1078.26-28. Councilman Benyo protested to the Planning Board that the areas "still [had] not recovered from the heavy invasion of apartment buildings" there and that "[a]ny further concentration of population would lead to a rapid deterioration of the entire area." GX 1078.15.
As the Planning Board and City Council were preparing to act on the sites, The New York Times published a story on the controversy, describing at some length "the split between suburban conscious East Yonkers and urban conscious West Yonkers." GX 1078.16. The article reported that previous projects had been "built in slum areas, reinforcing what planners call socio-economic ghettos," and quoted one resident of East Yonkers as saying that her family had "saved for years to move out of the city," and that "now they want to put right next door everything we tried to get away from." Id. Another East Yonkers resident was reported to have explained that it wasn't that she didn't believe in racial or social or economic integration ... but [that] those people from Yonkers would feel so out of place here ... it would not be fair to them." Id.
The Times article was cited to City officials in a letter from the pastor of a Southwest Yonkers church, who said that its reference to reinforcing socio-economic ghettoes "sums up our argument" against the placement of more subsidized housing in the downtown area of Southwest Yonkers. GX 1078.22. "Basically," the letter declared, "this is out and out discrimination not only against negroes, but against lower-income whites as well." Id.; see also GX 1078.14.
In May of 1965, the Planning Board voted to disapprove all of the sites except four in Southwest Yonkers. GX 1078.28. The only comment recorded in the Planning Board minutes with respect to the two twelfth ward sites in East Yonkers was that Councilman Benyo and his constituents were opposed to the site. Id. One week later, the City Council referred all eleven sites to its committee on housing, where they remained until April of the following year. GX 1078.32.
In December of 1965, with the matter still in committee, Emmett Burke, the Secretary-Director of the MHA, sent a memo to the City Council asking for a decision on the sites. The Council, in turn, referred Burke's memo to YURA, which replied merely that public housing was indeed needed for relocation housing, but that it would "not presume to recommend for or against any of the sites selected." GX 1078.43. Nevertheless, at a meeting held the same day with a citizen's advisory committee, George Piantadosi, the acting director of YURA, criticized the City Council for "doing nothing" about public housing, and one of the committee members suggested that the committee undertake its own site investigation. GX 1078.44.
In February of 1966, Burke wrote to the City Manager, asking again "for serious and immediate consideration" of the eleven possible housing sites. GX 1078.48. He explained that there were eighty-seven unused housing units from a previous reservation that might still be available to the City, but that he could not justify attempting to retain or expand the reservation (as would be necessary if future relocation needs were to be met) unless housing sites were approved and ready for development. Id.
Two months later, the Council's Housing and Urban Renewal Committee finally acted, recommending the same four sites that the Planning Board had approved eleven months earlier. GX 1078.51. Recalling the pattern of previous years, the sites not recommended by the committee were in areas of the City that were overwhelmingly white, and the four sites recommended were in areas of the Southwest that were, or were rapidly becoming, heavily minority. GX 1225.42; 1225.44.
The committee's recommendation was strongly criticized by the Yonkers Council of Churches, the NAACP, CORE, and a member of the Yonkers Human Rights Commission. The groups noted that all four sites were located in the "core" or "ghetto" area of the City, and they suggested that the selection represented acquiescence on the part of the Council to the "phenomenal pressure" put on it by the residents of other areas of Yonkers and "portend[ed] a greater ghettoization of those neighborhoods whose 'powerless' and 'voiceless' residents could not generate the same kinds of 'pressures' as could the other residential neighborhoods where" sites had been proposed. GX 1078.58, 1078.60, 1078.62, 1078.64.
In addition, the groups noted that three of the sites were densely occupied and presented serious relocation problems, GX 1078.58, 1078.60, 1078.64, an assessment with with YURA concurred. GX 1078.66. The groups gave qualified support to the fourth site (on Hawthorne Avenue) as representing the "lesser of evils," but urged the City to adopt a policy of "scattering" its public housing throughout the City. GX 1078.58, 1078.60, 1078.62, 1078.64.
The following month, in May of 1966, the City Council voted to approve the Hawthorne Avenue site and to refer the other three back to committee. GX 1078.62; GX 1078.63. However, due to an apparent breakdown of communication between the Council and YURA on one side and the MHA on the other, the site was not submitted to HUD for another several months.
When the site finally was submitted, HUD declared it to be unacceptable. The City was advised by the Regional Administrator in HUD's New York office that the Hawthorne/Riverdale site was "marginally feasible" and presented problems with respect to the "potential concentration of minority groups." GX 1078.94. The HUD official urged consideration of alternate sites, especially "scattered sites." Id. ; 1078.106. In reply, YURA wrote that an "evaluation of family incomes, size, and other criteria indicate that a very well balanced racial mix will result from relocating just our urban renewal relocatees" and that "the fears you express about the creation of a 'racial ghetto' will depend largely on the admission practices of the [MHA]." GX 1078.98. Two months later, in November of 1966, HUD formally notified the City that it would take no immediate action on the Hawthorne/Riverdale site and asked for the submission of alternate sites. See GX 1078.111.
Later that month, amid public calls by the Chamber of Commerce and the Yonkers Economic Development Corporation for the approval of sites for relocation housing so that the City's urban renewal plans would not be delayed any further, GX 1078.113, 1078.115, 1078.116, 1078.120, the City Manager, as Chairman of YURA, wrote to the City Council stressing the importance of public housing to the future of urban renewal in the City and "urgently request[ing]" immediate reexamination of all the sites in committee as well as consideration of expanding the Hawthorne/Riverdale site. GX 1078.118.
At one YURA meeting, City Manager Adler expressed the hope that at least one more site -- namely, the Bronx River Road site in East Yonkers -- could be approved, but noted that "[e]verytime a site comes up a councilman will say 'not in my ward.'" GX 1078.117. Later in the meeting, it was announced that YURA would undertake its own search for sites. The task was to be handled by a subcommittee of YURA's Citizens Advisory Committee ("CAC"), who, according to Piantadosi, were "going to war to get sites for us." Id.
The CAC Subcommittee's efforts resulted in a list of nineteen sites scattered throughout the City. GX 1078.124. None, however, was developed for public housing, nor does it appear from the record that any serious study was given to the list. The only effect the list appears to have had was to further publicize the degree of opposition that existed to the placement of public housing in any heavily white area of Yonkers.
The existence of the CAC list first came to public attention after a joint meeting among the MHA, YURA, the Yonkers Commission on Human Rights, and the YURA-CAC, at which City officials debated whether the list should be released to the press. GX 1078.125; 1078.39. According to press accounts, which dubbed the list the "secret renewal sites," two councilmen, Alfred Del Bello and Jesse Eisen, expressed concern about the pressure that would be brought to bear on councilmen unless the public was educated about the need for site selection on a city-wide basis. GX 1078.125; 1078.126; 1078.128. "[C]ouncilmen," Eisen warned, "will have to have a great deal of intestinal fortitude." GX 1078.125. Del Bello added that he did not think the City's councilmen had "sufficiently strong shoulders to consider sites no matter what time of year" it was. Fear was reportedly expressed by several speakers that "the public is not yet ready to accept the federal government's plan for racial and economic integration on a citywide basis." Nonetheless, Councilmen Eisen and Chema expressed support for the concept of scattered sites, with Eisen quoted as saying "Let's not scatter them in Southwest Yonkers." Id.
The CAC list was obtained and published by the press a few weeks later, causing, in the words of YURA members, "a great deal of alarm in the community." GX 1078.133.
The Taxpayers Organization of North East Yonkers invited George Piantadosi, the acting director of YURA, to speak to the group about the CAC list. Instead, Piantadosi wrote to the group, reassuring them that CAC's role was solely an advisory one, that the consideration of any of the sites was still in early stages, and that a "thorough study" of each was called for and would include consideration of the "attitude of the local community toward accepting public housing." GX 1078.138. The list of nineteen sites was passed on to the City Manager in January of 1967 with the CAC's recommendation that five be given further study. GX 1078.135; 1078.136. There is no indication in the record that the CAC's recommendation was followed or that the list was put to any other use.
On the same day that the CAC list was published, the City Council's housing committee referred seven sites to the Council -- all but three of the remaining ten from the MHA's original list. GX 1078.129. Two of the sites not referred were East side sites (one on Texas Avenue and another on Sweetfield Circle) that had since been acquired in whole or in part by private developers. GX 1078.130. Six of the sites referred to the Council were in Southwest Yonkers; one (a site on Bronx River Road) was in East Yonkers.
As in previous years, announcement of the sites prompted opposition from civic associations and, with respect to two sites on Garfield and Fillmore Streets (essentially the same RAMP area proposed in 1956), a mass protest rally. GX 1078.144; 1078.145. The opposition was noted at a YURA meeting, with Planning Director Pistone observing that people "all adopt the same attitude: don't put public housing in my backyard," and that they were "not too receptive to explanations." GX 1078.144.
In February of 1967, the City Council held a meeting to vote on the seven sites. As the debate preceding the vote made clear, the Council faced a choice between continued placement of public housing in and around downtown Yonkers, in some of the City's most heavily minority areas, or acceptance of the concept of scattering public housing throughout the City so as not to reinforce economic and racial segregation. In its votes, the Council chose the former. The worst of the sites in terms of immediate proximity to other projects (a site on Palisade Avenue and Carlisle Place) was rejected, but so too were the two RAMP sites in the overwhelmingly white Nodine Hill area of Southwest Yonkers as well as the only site left on the list that was in East Yonkers (the site on Bronx River Road). Another Southwest site (between Stanley and Riverdale Avenues) was deferred to a future meeting, and two sites on Croton Terrace -- a heavily minority area in the Southwest neighborhood known as the Hollow -- were approved. GX 1078.151; 1078.152. Two weeks later, the remaining Southwest site (also in an area with a high minority population) was also approved. GX 1078.155. The three sites approved were the same ones that had been recommended ten months earlier by the Council's housing committee but vigorously opposed on the grounds that they presented serious relocation problems and would lead to a further overconcentration of public housing in one area of the City.
During the debate preceding the Council's vote, it was noted that the federal authorities were urging "scattered site" housing, and that the City's urban renewal funds depended upon producing acceptable sites for relocation housing. GX 1078.152. Several councilmen, as well as the newly elected Mayor, James O'Rourke, spoke in favor of scattered site housing generally and the Bronx River Road site in particular. Id. ; Tr. 790-91 (Wilson); Tr. 7227-30 (King). One councilman stated that the site "does seem to fit what everyone has been looking for," while another declared "we have an obligation to take advantage of it." GX 1078.152. The ward councilmen for both the Bronx River Road and RAMP sites strongly opposed their selection, however, and the final vote on the sites (taken after a recess during which the Council went into closed session) was eight to five against the Bronx River Road site and eleven to two against the RAMP. Id. ; Tr. 7229-30 (King).
A few weeks after the February vote, the City's Congressional Representative, Richard Ottinger, publicly attacked the sites that had been approved, contending that they would "promote racial and social segregation." GX 1078.158. In May of 1967, HUD notified the City that it would not approve the sites that had been submitted, GX 1078.163, with that notification, the City's Stage II urban renewal project officially came to a halt.
E. The Nature and Effect of the Recurring Pattern of Public Opposition
There is little room for doubt that the pattern of community opposition described above significantly affected the City's site selection for public housing. Despite repeated statements by City officials about the urgency of the City's need for public housing, nine years passed before the City approved a sufficient number of sites to make use of a single year's allocation of public housing units. During that time, the City more than once risked the loss of its funding allocation, and in any event, forfeited the opportunity to apply for additional allocations of federal assistance. Nor did the pattern of delays and disapprovals cease even when HUD made clear that the City's urban renewal programs would not go forward unless acceptable sites were approved and submitted.
In addition, it is clear that the delays were not occasioned by a lack of suitable sites. The minutes of agency meetings repeatedly quote city officials and other on-the-scene observers as stating that the chief source of the City's site selection difficulties was community opposition -- a view that is corroborated by the record of approvals and disapprovals for the years in question.
City Council approval was rarely given in the face of organized opposition to a proposed site by area residents or civic associations. Indeed, over the course of eighteen years and the consideration of dozens of sites, it was given only twice. The first such approval (a site on Frederic Street in 1951) took fourteen months to obtain, carried by a single vote, and became a campaign issue in the next election. For reasons unspecified in the record, the site was subsequently abandoned. See GX 1058.
The second and only other site which the record shows to have been approved despite organized community opposition is the site of Loehr Court, a 108-unit senior citizen housing project on Western Avenue in Southwest Yonkers (one of the three sites approved by the Council in 1958). The Park Hill Residents Association sent a letter to the City Council announcing its unanimous opposition to the Western Avenue site, and according to the testimony of former ward councilman William Tully, some 300 residents of his ward attended the site selection meeting. Former councilman Tully testified that he had been "irritated" to have been "put on the spot" in front of his constituents, and he suggested that at least part of the reason for his failure to persuade the Council to reject the site was the fact that he was a Republican on a heavily Democratic Council. Tully Dep. 14-15, 17, 25-26.
Whatever the reason, the Western Avenue site clearly was the exception rather than the rule. With respect to nine of the twelve other sites approved by the Council for public housing during the eighteen years in question, there is no evidence whatever of organized opposition by area residents or civic associations.
With respect to two (Stanley/Riverdale and Hawthorne/Riverdale), there is some indication that the sites may have been opposed in the past, but no evidence of current opposition. With respect to the last (Lake Avenue), opposition arose only after the site had been approved, and the site was subsequently abandoned. In contrast, the numerous sites that were the subject of organized community opposition were either disapproved by the Council, referred to and left in Committee, or for other reasons, never the subject of formal action by the Council.
Plaintiffs suggest that the reason for the City Council's extreme responsiveness to community opposition was the ward system under which the City Council operated, and in particular what plaintiffs contend was an unofficial "councilmatic veto power" held by ward councilmen over matters of importance affecting their wards. While a description of the phenomenon as a "veto power" suggests a greater formality and certainty than appears to have obtained, it is indeed clear from the evidence for these, as well as subsequent years, that the support of the ward councilman generally was, and was perceived to be, critical to a site's prospects for approval by the City Council. Numerous past and present City officials, including councilmen themselves, testified to the existence of a strong tendency to defer to the views of the ward councilman. Alfred Del Bello, for example, who was a councilman for 1966 to 1969 and Mayor of Yonkers from 1970 to 1973, testified that the ward councilman was "normally allowed to lead the issue" in matters affecting his ward, and that as a result City officials tended to consult the ward councilman to determine whether or not his support could be obtained for a project. Tr. 1178-79. Without that support, according to Del Bello, "it was usually much more difficult to get approvals out of the Council." Id.; see also Tr. 1180-86; 1192-93. Walter Webdale, the Director of YURA from 1967 to 1971, likewise acknowledged that it was "difficult to conceive" of getting Council approval for a subsidized housing site without having the support of the ward councilman, and Morton Yulish, the City's Director of Development from 1971 to 1974, characterized that fact as an "unwritten rule" which was "very clear to all who worked with the City Council." Webdale Dep. 186; Tr. 858-60 (Yulish); see also Tr. 987-88 (Iannacone); 1666-70 (O'Rourke); 1869 (Schneider); 2813-14 (Arcaro).
In addition, numerous councilmembers acknowledged that their own position with respect to sites proposed for subsidized housing in their wards was, in turn, strongly influenced by the views of their constituents. Some explained it on the basis of a belief that people had a "fairly good right to determine" what they would see when they looked out their windows. See, e.g., Tr. 1676-78 (O'Rourke). Others suggested, more pragmatically, that they viewed their prospects for re-election as depending upon it. See, e.g., Cola Dep. 80-81; Tr. 992-93 (Iannacone); cf. Tr. 1874-77 (Schneider); Webdale Dep. 484. And there is abundant evidence that their constituents encourage that view. See, e.g., Tr. 1197-98 (Del Bello); P-I 106-26 (GX 1063.13).
It is true, as the City has emphasized, that a number of the sites rejected during these years were disapproved by the Planning Board as well as the City Council, or were never presented to the Council after their disapproval by the Planning Board. But even with respect to those sites, there is reason to conclude that community opposition, and its effect on the City Council, played a major role in their rejection. With respect to the influence of a Planning Board disapproval on a subsequent City Council vote, the record suggests that the Council's reliance on the views of its Planning Board was selective. When a Planning Board disapproval was accompanied by community opposition (as it was, for example, in the case of sites on St. Nick's Oval and Bronx River Road), the City Council tended to likewise disapprove the site. When a Planning Board disapproval was not accompanied by community opposition, however, (as in the case of the School Street site in 1958), the City Council was willing to override even a strong vote of disapproval by the Planning Board.
Moreover, the Planning Board itself was not immune from lobbying by area residents or their representatives. At the first sign of community opposition, a council committee was formed to meet with site selection agencies and to "let the public know that the Council [had] an interest" in site selection. GX 1204.4. Ward councilmen also regularly appeared at site discussion sessions of the MHA and the City Planning Board or wrote to the agencies to report on the reaction of the neighboring community to a proposed site. See, e.g., GX 1058.36; 1204.4; 1204.13; 1059.6; 1063.8; 1078.15. In addition, area residents and civic associations also contacted the Planning Board and other site selection agencies directly. Copies of resolutions and petitions in opposition were routinely sent to the Planning Board, and groups also appeared in person to speak against particular sites. See, e.g., GX 1058.6; 1059.1; 1059.7-1059.9; 1060.14; 1060.38; 1069.10; 1078.17-1078.19.
To be sure, the record contains evidence that planning criteria -- that is, factors such as cost, zoning, the physical suitability of the site, future plans for the area in general or the site in particular, availability and adequacy of public facilities such as schools, shopping, transportation, etc. -- were regularly discussed by the MHA and the Planning Board and sometimes stated as the basis for their decisions. The record also contains abundant evidence, however, that these agencies were acutely aware of the requirement of Council approval, and of the unlikeliness that the approval would be forthcoming if there was significant community opposition to a site. See, e.g., GX 1059.2; 1059.4; 1059.14; 1062.1; 1062.4; 1063.4; 1063.8; 1063.10; 1063.17; 1064.19; 1064.20; 1078.110; 1078.117; 1204.7; 1204.18. Moreover, with respect to some sites (for example, the Bronx River Road and Texas/Georgia Avenue sites proposed in 1965) no reasons apart from community opposition were offered at the time of their disapproval by the Planning Board. GX 1078.28.
In addition, the pattern of Planning Board approvals and disapprovals further suggests that the presence or absence of community opposition was an important factor in the decisionmaking process. With respect to East side sites, most notably, the Planning Board's decisions (like the City Council's) follow a general pattern in which the sites that were disapproved were ones that prompted opposition from area residents and civic associations, see GX 1059 (Coyne Park, Raybrook Road, Midland Avenue); GX 1060 (St. Nick's Oval, Ridgeview Avenue); GX 1078 (Bronx River Road, Sweetfield Circle, Texas/Georgia Avenues), and those that were approved were ones for which there is no evidence of such opposition. See GX 1063 (old School 1 site, Martin Ray Place). The single exception to the pattern was the Smart Avenue site, which Planning Director Pistone characterized as "ideal," and which the Planning Board approved notwithstanding the objections of the ward councilwoman. But the site ceased to be an exception when it came up before the Council itself, where it was rejected.
The sites that generally escaped community opposition, and thus successfully emerged from the site selection process, are heavily concentrated in the downtown area of Southwest Yonkers. See Appendix A. Indeed, more than half of the total public housing units built during those eighteen years (713 units out of a total of 1,365) were concentrated in two adjacent Southwest projects (Schlobohm Houses and Walsh Gardens) which in turn were only a few blocks away in one direction from the 800 units of public housing contained in Mulford Gardens and Cottage Place Gardens (the two projects built in the 1940's), and a few blocks away in the other direction from the 278 public housing units contained in Calgano Homes (the School Street project approved in 1958). Thus, by 1963, more than 80% of the City's existing or planned public housing was located within a several-block area of Southwest Yonkers. Yet, despite this extreme concentration of public housing units in one area of the City, the additional sites that were approved in 1966 and 1967 (but rejected by HUD) were all located near that same area.
The City has sought to explain this extreme concentration as the result of a plan to use public housing to rebuild the Southwest Yonkers. In this regard, the City places chief reliance upon a series of Master Plan Reports published by its Planning Department in the late 1950's and 1960's. C-1504; C-1505; C-1506. Those reports, however, do little more than confirm an undisputed fact: that Southwest Yonkers was the area in greatest need of urban renewal. The reports in no respect recommend concentrating the City's public housing in and around the downtown area of Southwest Yonkers. In fact, the Yonkers Central Business District (CBD) Study, published in June of 1959, expressed concern about the "lower family income concentrations in the immediate periphery of the CBD." C-1503. And the Land Use and Community Facilities Plan, published in June of 1961, specifically called for a mix of income levels to be represented in the residential portion of the Southwest's redevelopment. C-1505.
The City has suggested that its planners viewed public housing as the only mechanism available to the City to initiate redevelopment on slum clearance sites and thus pursued a plan of using public housing as the "seed investment" to attract the other development contemplated by the Master Plan. But that argument is not supported by the record.
Neither the Planning Department's recommendations, nor its approvals, were limited to sites in Southwest Yonkers. Indeed, the first and only consistent proponents of the view that public housing should be restricted to the "blighted areas" of Southwest Yonkers were not City officials at all, but civic associations protesting sites that had been proposed in their own neighborhoods. See, e.g., GX 1058.6; 1058.102; 1069.11. In contrast, the Planning Department's first, and apparently only, detailed position paper on public housing for this period -- a "proposed methodology for site selection" issued in May of 1950 -- targeted neither the Southwest nor areas of blight as the only appropriate sites for public housing. GX 1058.16. In fact, one of the specific sites recommended in the report -- a site at Palmer Road and Stratton Street -- was in an unblighted (and overwhelmingly white) area of Central Yonkers just west of the Saw Mill River Parkway. Id. ; see also GX 1225.41; C-1805A. For reasons that are not apparent from the record, the site was never pursued.
Nor were many other of the Planning Department's initial or subsequent recommendations adopted. As noted earlier, for example, the 1950 report recommended that public housing projects be limited to 250 units so as to "reduce their impact" on the surrounding area -- a recommendation that was abandoned by City officials when it became apparent that the City was suffering from a shortage of "politically suitable" sites which was at least as serious as it need for public housing. Cf., e.g. GX 1062.4. Likewise disregarded was the Planning Board's strong opposition to the selection of sites that would prevent construction of a proposed arterial route which the planners considered to be critical to the eventual revitalization of the City's CBD.
Nor, certainly, can the sites selected in 1965 and 1966 be explained on the basis of any plan to use public housing to revitalize the Southwest. The chief criterion for sites during those years was "universally accepted" to be that the sites be vacant so as to add to the City's supply of relocation housing and avoid any further reduction or loss of federal urban renewal assistance. GX 1078.67; see also, e.g., GX 1078.8. Yet, vacant and properly zoned sites in East Yonkers were rejected in favor of four Southwest sites which posed significant relocation problems of their own and which were rejected on that ground (among others) by HUD. Far from contributing to efforts to revitalize Southwest Yonkers, the City's choice of sites brought those efforts to a halt.
It is, in short, difficult to discern any plan at work in the City's site selection process during these years, except for an apparent determination to avoid, at virtually any cost, a confrontation with community opponents of public housing.
There is also considerable evidence to suggest that this community opposition was based, at least in part, upon the race of the potential occupants of public housing. Indeed, with respect to the years from 1965 to 1967 (as will be the case with respect to future years as well) there is scarcely any basis for doubt that race was a factor in the opposition. City officials themselves publicly identified the issue before them as being whether the residents of Yonkers were "ready" for the economic and racial integration being urged upon the City by HUD, by groups such as the NAACP and the Council of Churches, and by one of YURA's own citizen's committees -- the Relocation and Minority Housing Subcommittee of the Citizens' Advisory Committee. See generally GX 1078; see also HOUSING III.D supra.
Moreover, Alfred Del Bello, one of the City officials closely involved in those events, acknowledged at trial (as did other City officials involved in the events of subsequent years) that his constituents equated public housing with minorities, and that race was "definitely" a factor in much of the opposition that arose during the site selection process. Tr. 1194-97 (Del Bello); see also Tr. 7237-38 (King).
The evidence for the years preceding 1965 is decidedly less dramatic. But even with respect to those years, there is considerable evidence suggesting that race was at work in the sustained community opposition that existed to the placement of public housing in any but a few areas of the City. As an initial matter, the pattern of opposition itself strongly suggests a racial influence. Sites proposed in East or Northwest Yonkers, or the heavily white areas of Southwest Yonkers, almost invariably prompted strong community opposition. Sites proposed in the more heavily minority areas generally did not.
In addition, the exceptions to the pattern tend to reinforce, rather than weaken, the inference to be drawn. The few sites in white areas that prompted little or no opposition were for senior-citizen or middle-income (Mitchell-Lama) housing, whose occupants were more likely to be heavily white. See, e.g., Tr. 878-80 (Yulish); 994-95 (Iannacone). Indeed, the distinction between low-income and middle-income housing is particularly well illustrated by the remark of a City official recorded in the minutes of a YURA meeting in 1966. Amid a discussion of the need to prompt the City Council to take action on the public housing sites that were still buried in committee, George Piantadosi observed that it was now possible to place public housing tenants in Mitchell-Lama units, and that the way to get the Council to produce sites for public housing was to tell it that they planned to do so. GX 1078.44; see also GX 1078.23; 1078.66.
To be sure, there is little evidence of overtly racial statements by opponents of public housing. And former councilman Edward O'Neill, who strongly and successfully opposed three sites proposed in his east side ward in 1953, testified that he believed race played no role in site selections because "nothing was ever expressed for the record to indicate that it did play a role." O'Neill Dep. 102. The former councilman went on to acknowledge, however, that racial opposition was "certainly ... nothing anybody would put into words." Id. at 189.
Nor is direct evidence of a racial influence wholly lacking. At least one group of citizens expressed concern in 1958 about having to "absorb the overflow from Harlem or Puerto Rico." P-I 106-26 (GX 1063.13). And during at least one Planning Board meeting that same year the Secretary-Director of the MHA expressly stated that some of the sites under discussion could be expected to prompt objections on grounds of race. GX 1063.8.
Moreover, beginning with the very first sites proposed, a common theme in the objections has been concern about declining property values, the "deterioration" of the neighborhood, the undesirable "element" attracted by public housing, and insistence that public housing properly belonged in "blighted areas," not "residential communities." See HOUSING III.B through III.D supra. Such objections in and of themselves may not be sufficient to indicate that a racial influence was at work. However, when those objections are combined with a pattern of opposition that also suggests a racial influence, it becomes significantly harder to accept the argument that the concerns were purely economic.
It becomes harder still when, as here, there is also evidence that although Yonkers had, until the mid-1960's, a relatively small and stable minority population, GX 1225.1, it was very much a racially divided city. In this regard, it is noteworthy that Runyon Heights was not created or maintained as a black enclave merely by chance or "associational preferences" that were unrelated to racial discrimination. According to the City's long-time Planning Director, Philip Pistone, the neighborhood was founded on a large tract of land owned by a state senator who regularly brought busloads of residents from Harlem there for weekend picnics, during which he would auction off parcels of the land. Tr. 9508-09 (Pistone). As the neighborhood developed, any contact with the overwhelmingly white Homefield area immediately to the north was severely discouraged when the Homefield Neighborhood Association purchased and maintained a four-foot strip of land as a barrier between the streets of the two neighborhoods. Tr. 2740-42 (Downes); see also SCHOOLS IV.A.3.a infra. And the objections raised by Runyon Heights residents to the first site proposed there for public housing in 1956 make clear that the area was perceived to be the only one open to blacks in East Yonkers. See GX 1060.12, 1060.16. While this history does not, of course, warrant any general presumptions about the subsequent acts of City officials, it does markedly increase the significance of the fact that the only site selected for family public housing which is not in Southwest Yonkers is in Runyon Heights.
Similarly noteworthy are the circumstances surrounding the construction of Cottage Place Gardens, the City's second public housing project. In apparent response to concerns expressed in the late 1930's by community leaders about the difficulties blacks were encountering in obtaining decent and affordable housing in the private market, the City resolved to build a public housing project "for Negroes" and set about finding a suitable site on which to do so. See GX 1053. Various sites were rejected on the ground that the level of minority concentration there was not sufficiently high, and the site eventually selected in 1940 was in one of the most heavily minority areas of Southwest Yonkers. GX 1225.41; P-I 360.
The significance of Cottage Place Gardens is twofold. First, the circumstances surrounding its construction suggest that private market discrimination played a major role in maintaining the pockets of minority concentration which existed in Southwest Yonkers through the mid-1960's (when those pockets of concentration began to expand significantly), and that City officials were well aware of that discrimination. And in this regard, what is suggested by Cottage Place Gardens is decisively confirmed by the credible testimony of various Yonkers residents, as well as that of the City's former Director of Relocation, and by contemporaneous City documents describing the extreme difficulty that minorities had in finding relocation housing when they were displaced by urban renewal. See, e.g., Tr. 428-56 (Smith); 527-29 (Gibson); 2333-43 (Stores); 1933-95 (Trommer); GX 1068.1; 1068.3-1068.4; 1068.11; see also GX 1068.5.
In addition, with respect to the actions of City officials, the history of Cottage Place Gardens illustrates what would otherwise be merely a matter of common sense: that City officials were fully capable of comparing the relative minority concentration of various parts of the City, and of the Southwest, and then choosing a site that would best preserve existing patterns of segregation.
Once again, it bears emphasis that the history of Cottage Place Gardens does not, of course, automatically taint any subsequent actions taken by the City. However, with respect to the extreme degree to which the City's subsequent site selections in fact conformed to community pressures, and the extreme degree to which those pressures in fact followed a racially identifiable pattern, the history of Cottage Place Gardens -- together with the other evidence presented regarding private market discrimination and its acknowledged effect on minority relocation opportunities -- strongly diminishes any likelihood that those phenomena were merely coincidental and unrelated to an intent to preserve existing patterns of segregation.
IV. THE RIVERVIEW PERIOD
In sharp contrast to the preceding eighteen years, the period from 1968 to 1972 was a highly productive one for the development of subsidized housing in Yonkers. Sites were approved for fifteen sudsidized housing projects for families (totalling 2,647 housing units) and two subsidized housing projects for senior citizens (totalling 290 housing units). Most of the sites were approved during the years of 1970 and 1971. All seventeen sites were in Southwest Yonkers.
It is clear from the record that this productivity was attributable in large part to a series of conscious decision on the part of City officials to concentrate, at least for the present, on sites which were "politically feasible." It is equally clear that sites outside of Southwest Yonkers remained politically infeasible because of continuing opposition to subsidized housing on the part of area residents and civic associations -- an opposition based, at least in significant part, upon fear of an influx of minorities into what were (and remain today) overwhelmingly white neighborhoods.
A. Overview of Projects Approved
During the years in question, City officials largely abandoned reliance on the construction of public housing as a relocation resource, and turned instead to the subsidized housing programs known as § 221(d)(3) B.M.I.R. and § 236 housing. Under these programs the housing was constructed, owned, and operated by not-for-profit sponsors rather than a local housing agency. The sponsors received a low-interest mortgage that was subsidized and often insured by HUD, and were required, in return, to observe rental and income-limit schedules established by HUD. The guidelines were targeted for moderate-income households, but additional rental subsidies were available to make some or all of the units accessible to low-income households as well. Since the projects were required to be self-sustaining, tax abatements from the local government were generally needed in order to make the projects financially feasible.
All fifteen of the projects for families approved during this period were § 221(d)(3) B.M.I.R. or § 236 projects. Eight were sponsored by private non-profit or limited-profit groups; the remaining seven were sponsored by the New York State Urban Development Corporation ("UDC"), a public benefit corporation created by the New York State legislature in 1968 to participate in housing, commercial, and industrial development throughout the state.
The seven UDC projects were constructed pursuant to written agreements ("Memoranda of Understanding") between the City and the UDC, which were authorized by the City Council and executed on behalf of the City by the City Manager. Five of the seven projects (totalling 1,201 units of housing) were constructed pursuant to a single Memorandum of Understanding authorized and executed in July of 1970. The five projects are Frazier Homes (21 units) at the intersection of Warburton and Lamartine Avenues; the Dorado (188 units) at the intersection of Warburton and Ashburton Avenues; Whitney Young Manor (195 units) near the intersection of Nepperhan and Ashburton Avenues; and Riverview I (454 units) and II (343 units) on Riverdale Avenue in the City's Stage II urban renewal area. The sixth UDC project, the 300-unit Seven Pines, was constructed pursuant to a Memorandum of Understanding approved in June of 1971 and is located on Glenwood Avenue at the foot of Trevor Park. The seventh and final UDC project, the 310-unit Parkledge Apartments, was constructed pursuant to a Memorandum of Understanding approved in June of 1972 and is located on Yonkers Avenue, immediately west of the Saw Mill River Parkway.
The eight privately sponsored § 221(d)(3) and § 236 projects for families, which were largely the result of recruiting efforts by the director and staff of YURA, see HOUSING IV.C.1 infra, were constructed pursuant to City Council resolutions which granted the sponsor a substantial tax abatement in return for an agreement to give preference in both initial and subsequent rentals to persons displaced by urban renewal projects. The first such resolution was passed in January of 1968 for Jefferson Terrace, a 64-unit project between Highland Avenue and Jefferson Street. GX 1079.25. The next was Highland Terrace (96 units), a few blocks to the south, approved in July of 1968, C-453, followed by 10 Orchard Street (an 8-unit rehabilitation) in April of 1970, GX 1147.10; Messiah Baptist (130 units) on Highland Terrace in May of 1970, C-552; Waverly Arms (28 units) on Waverly Street in October of 1970, C-561; 164-170 Buena Vista Avenue (a 12-unit rehabilitation) in March of 1971, C-534; Cromwell Towers (317 units) at Locust Hill Avenue and Cromwell Place in July of 1971, C-747; and Jackson Terrace (181 units) on Riverdale Avenue south of Vark Street in November of 1971, C-509.
The remaining two projects approved during this period were senior citizen projects. Flynn Manor, a 140-unit public housing project on Riverdale Avenue at Post Street, was approved by the City Council in June of 1970, C-102; and Father Finian Sullivan Towers, a 150-unit Mitchell-Lama project, received preliminary approval in November of 1970, GX 1099.11, and final approval in October of 1973. GX 1099.19.
B. The Continuing Opposition to Subsidized Housing in the City's Heavily White Neighborhoods
For sixteen of these seventeen projects, there is little or no evidence of community opposition prior to the project's approval by the City Council. Only Parkledge -- the final UDC project -- appears to have encountered any significant community resistance. There is, however, abundant evidence of continuing community opposition to subsidized housing in certain areas of Yonkers. The opposition is, as before, evident in the heavily white areas of the City, particularly those east of the Saw Mill River Parkway. The sites approved by the City are, without exception, west of the Saw Mill River Parkway, and with three exceptions, in the more heavily minority areas of the Southwest. GX 1225.44. The exceptions are the two senior citizens projects (both of which appear to have been heavily white since opening, C-1650), and Parkledge, which is located immediately west of the Saw Mill River Parkway, and which was chosen in response to insistence by HUD that the City select a site outside of areas of minority concentration.
As before, there is relatively little evidence that the residents of the City's heavily white areas expressly mentioned race as a reason for opposing subsidized housing in those areas. But see HOUSING IV.C.3 infra. Nonetheless, there can be no serious doubt that the opposition was, on the whole, racially influenced. Numerous former city officials -- including those directly involved in the selection of sites for subsidized housing during this period -- acknowledged at trial that they themselves believed the opposition they encountered was indeed based, at least in part, upon race. See Tr. 1193-97, 1378-79 (Del Bello); 875-80; 1066-67 (Yulish); Webdale Dep. 487-88; 497-98; Tr. 983-86, 994-95 (Iannacone); 2792-94 (Arcaro); 1861-67 (Schneider).
As noted earlier, former East side councilman and Mayor Alfred Del Bello, testified that his constituents equated subsidized housing with minorities, Tr. 1197, and that "race was definitely a consideration in many of the demonstrations and visible opposition we had." Tr. 1194.
Walter Webdale, the Director of YURA from the spring of 1967 through the fall of 1971, testified more guardedly but to the same effect. Webdale acknowledged that the high level of emotion which prevailed at public meetings on subsidized housing was characteristic of issues that are "racially tinged." Webdale Dep. 487-88; 497-98. "At many meetings, there was no logic left to the meeting," Webdale explained, "and so one would have to assume there was something more than the size of the street, the water, the sewer, etc." Id. at 498. Webdale also testified that there was "trememdous fear" about subsidized housing in Yonkers, which was overcome in "some areas" but not in others. id. at 336-37; 562, and he cited the approval of the Parkledge project in 1972 as an example of one case in which that fear was overcome. Id. at 338.
Morton Yulish, who was the Administrator of the City's Department of Development from the fall of 1971 to early 1974, and who in 1971 and 1972 led the efforts to obtain City approval for a site outside areas of minority concentration, testified that he encountered intense opposition to subsidized housing in East Yonkers; that he believed the opposition to be based, at least in part, upon race; and that he shared his views on the subject with Mayor Del Bello and City Manager Seymour Scher. Tr. 1066-67. Yulish testified that the issues raised "on the surface" were generally whether tax abatements should be granted outside of urban renewal areas; whether the "residential character" of single-family neighborhoods should be changed; and whether the federal government should be permitted to control what would happen in the City's neighborhoods. Id. at 875. However, Yulish considered those issues often to be "smokescreens" for underlying racial fears, id. at 875-80, and he testified that at many meetings, the issue of race was "very thick in the air." Id. at 1066-67. "The bottom line," according to Yulish was that "there was no way that you could ... get public support, and then after the fact get councilman support, to build large-family, predominately black assisted housing on the other side of the [Saw Mill River] Parkway." Tr. 879-80.
Both Yulish and Gregory Arcaro, a planner with the City from 1968 to 1970 and from 1972 to 1980, further testified that many of those who lived in East Yonkers had moved there from the Bronx and other areas of New York City, and had expressed strong fears that subsidized housing would lead to the same "deterioration" which they had sought to escape. Tr. 2792-93 (Arcaro); 1064-67 (Yulish); see also McLaughlin Dep. 77-78. In addition, there is evidence of a widespread belief that part of the reason for the sharp rise in the City's minority population from the mid-1960's on was a influx of minorities displaced by the urban renewal that had taken place in White Plains. See, e.g., Tr. 841-45 (Yulish); 1728-33 (O'Rourke). As a result, according to Yulish, some people in Yonkers equated urban renewal with "large infusions of minorities into a city ill-equipped to cope with them," Tr. 843, and they were uninterested in pursuing urban renewal unless they could "get even" by sending the people displaced by urban renewal back to White Plains. Id.
David Bogdanoff, a builder who worked closely with City officials on a number of subsidized housing projects during these years, characterized racially influenced opposition to subsidized housing as simply as "fact of life at the time" in most predominantly white communities. Tr. 10,224. Bogdanoff testified that there was a "tremendous fear" in East Yonkers (as in most predominately white communities) that placing subsidized housing there would result in an invasion of minorities, and that "of course" it influenced where he could build. Tr. 10,224-25; see also 10,197-99; Logue Dep. 112. In fact, Bogdanoff volunteered that is he had attempted to tell the residents of any heavily white community that construction of subsidized housing need not result in an invasion of minorities, he "would have been howled down with laughter." Tr. 10,197.
C. The Pattern of Opposition and Apparent Acquiescence
The pattern of sites selected during this period, and the circumstances under which they were selected, taken together with the testimony described above, strongly suggests that City officials likewise came to view racially influenced opposition to subsidized housing in East Yonkers as a "fact of life," and came to view acquiescence in that fact of life as the price of urban renewal in Yonkers.
1. The City's Campaign to Produce Privately Sponsored Projects
When Walter Webdale arrived in Yonkers in April of 1967 as the first permanent director of the Yonkers Urban Renewal Agency, he found the City's Stage II urban renewal project at a standstill due to an inability to provide relocation housing. For the past eighteen years, community opposition to public housing had seriously hindered site selection and had effectively ruled out sites in all but the most heavily minority areas of the City. Two months before Webdale's arrival, amid typically strong community opposition to several sites proposed in East Yonkers, the City Council had rejected all proposed sites except for several located in the heavily minority downtown area of Southwest Yonkers. Those sites, in turn, were rejected by HUD one month after Webdale's arrival. See, HOUSING III.D supra.
Webdale's first task thus became the removal of the "road block" that the lack of relocation housing presented to the Stage II urban renewal project, GX 1079.4, and he responded by undertaking an extensive campaign to bring about the construction of § 221(d)(3) and § 236 projects. See, e.g., GX 1079.8; 1079.17; 1079.26; 1080.14; 1081.8; 1082.1; 1086.6; 1207.3; Webdale Dep. 72, 89-90; Tr. 10,182-83 (Bogdanoff). Webdale and his staff at YURA located sites, solicited sponsors, and provided the sponsors with a broad range of technical and political support, including assistance in preparing applications to HUD, see, e.g., GX 1079.18; 1082.2; 1083.9; and submissions to the City Council, see, e.g., GX 1079.34; 1079.53; 1083.32; planning and construction designed, see, e.g., GX 1079.52; 1083.11; 1084.5; and meeting with federal, city and school officials, see, e.g., GX 1079.45; 1083.31; 1083.32; 1084.1.
Although Webdale looked at sites outside of Southwest Yonkers, and although his office publicly stated that projects were expected to be built "on scattered sites in various parts of the city," GX 1079.61a, Webdale limited his efforts at recruiting sponsors for § 221(d)(3) and § 236 projects to Southwest Yonkers. See, e.g., Webdale Dep. 56-58, 137-38, 243-44.
So limited, site selection and approval proved far less difficult than in previous years. Although the minority and other community groups continued to press to press for scattered-site housing, see HOUSING IV.D.3 infra, and although concerns continued to be raised about the increasing concentration of subsidized housing in the Southwest, see HOUSING IV.D.4 and 5 supra, the sites designated for the § 221(d)(3) and § 236 projects prompted little apparent opposition from area residents (indeed, some were actively supported by area residents, see HOUSING IV.D.3 infra), and they were approved without incident by the City Council.
2. The Candeub & Fleissig Survey and the City's 1970 Memorandum of Understanding with the UDC
In 1969, while the campaign to produce privately sponsored projects was underway in the Southwest, a citywide vacant land survey, jointly commissioned by the City, the Yonkers Chamber of Commerce, and the UDC, was made public. The result, as in previous years, was immediate and apparently effective opposition from the residents of East and Northwest Yonkers. The survey was summarily abandoned, and sites in the downtown area of Southwest Yonkers were designated soon thereafter for five subsidized housing projects (totalling 1,200 units) to be sponsored by the UDC.
The survey in question arose as part of the City's efforts to persuade to Otis Elevator Company, one of the City's largest employers, to remain in Yonkers. Otis had indicated that it needed either to expand its existing facilities or relocate elsewhere, and in 1968 the City asked the newly created UDC for assistance in its efforts to retain Otis. C-579.
Among the areas in which the City sought assistance was in the relocation of some 1,000 predominantly minority families from the riverfront area designated for the Otis expansion. Id. ; GX 1096.47. To that end, the UDC, the City, and the Yonkers Chamber of Commerce hired the consulting firm of Candeub & Fleissig to identify "available sites within the City for the construction of low and moderate income housing ... [with] special attention ... to the potential development of open land sites." C-592.
In May of 1969, Candeub & Fleissig produced a list of ninety-eight vacant sites in Yonkers, and a ranking of those sites according to their feasibility for the construction of subsidized housing. GX 1096.50; P-I 150-80. Twenty-two of the ninety-eight sites were in Southwest Yonkers; the remaining seventy-six were scattered throughout East and Northwest Yonkers. GX 1225.43. With the assistance of Planning Director Philip Pistone, eleven sites were designated for further study. Tr. 9768, 9872 (Pistone); GX 1096.60.
Word of the Candeub & Fleissig survey quickly reached the City Council. Alfred Del Bello, who was at the time the Democratic candidate for Mayor as well as the tenth ward councilman, called upon Walter Webdale "to supply our local news media with a map of all proposed sites or an explanation of why they are being kept secret. GX 1096.56.
On June 5, the local press published a description of eleven sites, and reported that the list had been obtained from a map in YURA's offices which bore the legend "Sites architecturally feasible for low and middle income housing." GX 1096.60. Four of the sites were in, or on the border of, Southwest Yonkers; the remaining seven were spread across Northern Yonkers. GX 1225.43; 1096.60.
Publication of the list created an uproar in Yonkers. See, e.g., Tr. 9870 (Pistone); 1703 (O'Rourke), GX 1096.98. Adding to the concern was the knowledge that the UDC's state charter gave it the power to condemn land and override local zoning ordinances, thus potentially removing control over site selection for local bodies such as the City Council. Tr. 1703 (O'Rourke).
On June 10, Mayor James O'Rourke issued a statement in response to "recent articles in the press relating to 'scattered site housing,' stimulated by public officials for unworthy political reasons and calculated to pander to public fear and agitation." GX 1096.63. The Mayor emphasized the importance of the Otis expansion project to Yonkers, and explained that "[a]s in all projects such as these, to break the bottleneck of initial relocation, several sites of decent housing will be required outside the project areas." Id.
The Mayor added, however, that no site proposals had, as yet, been made, and indicated that in determining site feasibility, "profound consideration" would be given to "maintaining the integrity and character of neighborhoods"; "maintaining the integrity of property values"; and "preserving the integrity of needed parks and recreation lands." Id. The Mayor closed his statement with the assurance that public hearings and discussions would be held before any sites were selected. Id.
A petition in opposition to the sites located in Northeast Yonkers was sent to the Mayor, the City Council, and the Planning Board. GX 1096.65. The grounds for opposition listed in the petition were that subsidized housing projects would have a detrimental effect on property values and "could blight the areas"; would violate existing zoning laws; would take away needed park and recreational lands; and would overtax school and transportation facilities. Id. The petition called for "public hearings ... on notice" before any action was taken on the sites, and declared in closing that:
It is reliably reported that these sites and the others mentioned in The Herald Statesman of June 5, 1969, are part of a proposed program for use of state funds to transfer N. Y. City residents into suburbs. If that is advisable it could be accomplished better by not creating conflict with or downgrading existing established residential areas.
A meeting was held on June 12 between City officials and the UDC. The following day, the press reported that according to Mayor O'Rourke, the UDC had said that it would refrain from imposing specific sites on Yonkers but would "pull out" of the renewal project unless "scattered sites" were selected. GX 1096.66.
Two days later, some 500 residents of the fifth ward in East Yonkers appeared at a meeting with City officials to protest the sites identified in their areas. GX 1096.71; TR. 1711 (O'Rourke). According to press accounts, the City officials in attendance included fifth ward councilman Andrew O'Rourke; Mayor O'Rourke; and Mayoral candidate Del Bello. All three sought to reassure the audience that the matter of site selection would be given careful study by the City Council, and that use of the UDC's power to override zoning laws would be resisted. Id. Del Bello, particular, called upon the UDC to leave the selection of sites to the City Council in order to "put the citizens' minds at ease." Id. The meeting also resulted in the formulation of a Citizens Committee, led by Councilman O'Rourke, to study the sites identified in the Candeub & Fleissig study.
On June 17, the UDC sent a telegram denying that it had threatened to pull out of the renewal project if scattered housing sites were not selected and emphasizing that "only upon the City's recommendation and request" would UDC become involved in constructing housing anywhere within the City of Yonkers. GX 1096.74.
Several days later, Mayoral candidate Del Bello also publicly disputed the Mayor's version of the June 12th meeting, saying that in fact the UDC had offered to conform to the City's wishes. GX 1096.78. Del Bello further criticized the Mayor's "divisive attitude," and suggested that to move the City forward, "we must stop threatening the people and start understanding and implementing their wishes." Id.
Del Bello offered as alternatives to scattered site housing the acquisition of surplus land along the arterials then being constructed; leased relocation housing in existing structures; acquisition of parcels made vacant by fire and demolitions of substandard buildings; and the use of the "checkerboard strategy" to relocate individuals within an urban renewal area. GX 1096.100.
On July 10, a meeting was held among the City Council, representatives of the UDC, the Yonkers Economic Development Corporation ("YEDC") (a local business group), and the UDC's Citizens Advisory Committee ("CAC") to discuss sites for relocation housing. GX 1096.89. According to press accounts, twelve sites were proposed by the YEDC as possible sites for relocation housing, "touching off a passionate debate over racism." Id. Three of the five "primary" sites were reported to be located "deep in Yonkers' ghetto areas" and were criticized as such by the CAC Chairman, the Rev. William Gallagher; Vice Chairman Kenneth Skinner; and CAC member Msgr. John Harrington. Id. At the same meeting, a representative of the UDC reportedly reiterated that the agency "will not do anything the City does not want us to do" with respect to housing sites, and that it would not intervene in the City's internal disputes. Id.
In September, the Westchester County Board of Supervisors adopted a resolution, introduced by the Yonkers supervisors, calling for representatives of the county to introduce and lobby for state legislation to curb the UDC'S power to override local zoning laws. GX 1096.103. The resolution recited that the UDC had proposed subsidized housing for sites in Yonkers where it would "completely destroy the residential character of the adjacent neighborhoods" and violate the City's zoning laws. Id.
Internal UDC memoranda circulated in September of 1969 indicate the Mayor O'Rourke asked the UDC to "ease off" on the issue of scattered site housing until after the November elections, and that the UDC CAC was eager to issue a statement in support of scattered site housing but had, to date, been dissuaded by UDC officials from doing so. GX 1096.101; 1096.105; 1096.106.
On September 29, the UDC sent Mayor O'Rourke letter which notified him that the Otis Elevator Company had rejected the the UDC's expansion proposal (thus largely ending the UDC's involvement with Otis), but which offered to go forward with the housing component of the proposed riverfront renewal area. GX 1096.107. The letter added that:
The Citizens Advisory Committee is presently examining low and moderate income housing sites, and could be in a position to recommend a number of sites throughout the city shortly. I understand also that the City Council has been seriously reviewing scattered site housing locations throughout Yonkers. We are available to discuss the housing solutions with you and other city officials at any time.
No further action appears to have been taken on the Candeub & Fleissig sites in the months preceding the election. In November, Councilman Del Bello defeated incumbent Mayor O'Rourke in the mayoral race. Also defeated was incumbent third ward Councilman William Schneider, who ascribed his defeat, in part, to his support of scattered site housing. Tr. 1874-77; 1909.
Del Bello promptly abandoned the Candeub & Fleissig survey. As he explained at trial:
I thought [the Candeub & Fleissig survey] was the wrong way to go, that it would build far more resistance on the part of the public to any housing whatsoever, and that if I had succumbed to the same position that Mayor O'Rourke had adopted, I could pretty well assure the people of Yonkers we would never produce any housing. I was dedicated to producing housing, and I had to find a
political course that would allow us to get it constructed. And the course I chose was to not shotgun the issue, be very site specific, not to tilt at windmills, to use another expression, but to deal with sites that were realistic, that we could get approved and to get on to the process of building housing.
By April of 1970, three months after Mayor Del Bello had taken office, Webdale and City Manager Seymour Scher had negotiated a draft agreement with the UDC to build 1,400 units of housing at four locations. GX 1088.8. All four were in Southwest Yonkers, within a several block radius of the Getty Square area. GX 1225.44. Three months later, a final version of the Memorandum of Understanding (calling for 1,200 units at three of the locations) was formally presented to the YURA Board and approved that same day. C-612. The following day, it was approved by the City Council as well. C-613.
One of the sites involved was the City's Stage II (Riverview) urban renewal area, which had originally been planned for commercial re-use, but which (over the strong objection of the City's Planning Director Philip Pistone) had been redesignated for combined commercial and residential re-use shortly after Walter Webdale's arrival in 1967. See HOUSING IV.D.1 infra. Plans had begun soon after for the joint construction of a school and subsidized housing complex on the Riverview site, see SCHOOLS IV.A.2.b infra, with the housing intended to serve the dual function of providing a source of relocation housing for those displaced by urban renewal projects, and encouraging a return of middle-income whites into the area. See, e.g., GX 288; 1088.6. The July 1970 Memorandum of Understanding with the UDC doubled the number of housing units previously scheduled for the site. Compare GX 1088.6 with GX 1088.8 and C-6112.
The other three projects approved in the Memorandum --the Dorado, the Frazier Homes, and Whitney Young Manor -- were intended to provide relocation housing for the (predominately minority) population displaced by the Otis Expansion and by urban renewal in one part of a Southwest neighborhood known as the Hollow. See, e.g., Webdale Dep. 172, 231-32; Lenaz Dep. 73, 232-33, 251; Tr. 10,451-52 (Yost); C-606; GX 1097.14; 1144.4; 1120.16.
Neither the site selection for the three new projects, nor the doubling of the number of units scheduled for the Riverview site, appears to have been put to any public discussion during the rapid negotiation and extraordinarily rapid approval of the Memorandum of Understanding with the UDC. Nor were the matters submitted to the Planning Board for review. Tr. 9771, 9822 (Pistone).
3. The Glenwood/Ridge Avenue Project and Rockledge Heights
During the same months in which the July 1970 Memorandum of Understanding was under negotiation, Walter Webdale began meeting with a group known as the Clergy of Yonkers ("COY") and developer David Bogdanoff (both of whom were involved in the construction of other subsidized housing projects in the Southwest) regarding a proposal for the construction of a subsidized housing project for families near Glenwood and Ridge Avenues, at the northern border of Southwest Yonkers. The blocks immediately surrounding the proposed site, as well as those to the north and west, were overwhelming white, but there were a number of blocks with a 20-50% minority population to the Southeast. GX 1225.44; Tr. 10,191 (Bogdanoff). The project was intended to be a source of relocation housing for the Nepperhan Arterial extension, federal approval of which had been delayed due to a lack of an adequate relocation plan. GX 1207.3; 1099.8.
A developer, builder, architect, and attorney were hired, and (as he had with respect to previous projects) Bogdanoff absorbed the cost of the preliminary analysis. Tr. 10,190. At least $18,000 worth of work was completed, and COY and Bogdanoff met with Webdale and Scher in the spring of 1970 to present their plans for the project. Id. at 10,191-92.
Bogdanoff testified that soon thereafter, Scher reported to him that there was "strong neighborhood feeling" against the project, led by the pastor of a large Catholic Church in the area. Id. at 10,192. The church group announced that it planned to use the site for senior citizens housing, and Scher asked Bogdanoff to "help him out" in the matter. Id. Bogdanoff testified that he suggested to COY that it "withdrew graciously," and that he be allowed to absorb the loss "rather than to develope a principle fight which would get no place and would just trememdously increase the serious racial antagonisms that existed within the City." Id. Webdale likewise had reason to believe the church group's opposition to the family project was racially based. He testified that he had been told that members of the group had said that they "feared an influx of blacks into the neighborhood" would result if the project were built. Webdale Dep. 184-85; 579-581.
COY acceded to Bogdanoff's request to withdraw, GX 1099.11; 1099.12, and with the assistance of MHA Secretary-Director Emmett Burke, the church group received Planning Board and City Council approval for its proposed senior citizens project within a matter of months. GX 1099.9; 1099.11. The project was named in honor of the pastor of the church, Father Finian Sullivan, and opened in 1973. Charles Cola, who in 1971 was elected councilman of the sixth ward (in which the project was located) testified that he supported the project, and that if he had not, he "wouldn't have been elected." Cola Dep. 81. The occupancy data in evidence for the project describes it as 100% white. C-1650.
Fear about an influx of minorities was also expressed by area residents (and reported in the press) with respect to a proposed subsidized housing project known as Rockledge Heights. The site in question was in a predominantly white area of far Southwest Yonkers, on the bed of the old Putnam Railroad line near Wolfe Street.
In the spring of 1970, the site was proposed for an 85-unit § 236 project to be used for relocation housing. GX 1105.1; 1105.2; 1105.5. Webdale kept the ward councilman, Dominick Iannacone, informed of the progress of the plans, GX 1105.2; GX 1105.3; noted the likelihood of "objections by the community concerning the usual public facilities, schools, etc." GX 1105.3, and asked that if the councilman had any comments, to please let him know "during these early phases." Id.
Councilman Iannacone initially supported the project, Tr. 990 (Iannacone), but then, as he explained at trial, he "got some flak on it." Id. at 991. Some area residents complained to him about the loss of the railroad bed as a parking facility. Id. Others who knew him better approached him privately and said they didn't want the housing because they didn't want any blacks there. Id. at 991-92. Iannacone testified that he was, at the time, a new councilman, and wouldn't have been elected the next time "with all those people against me," id. at 992-93, and that he accordingly told the City Manager he was opposed to the project, citing his constituents' concern about the loss of their parking facility. Id. at 992. Iannacone then attempted, unsuccessfully, to change the zoning for the site from multi-family to S-100, a highly rectrictive restrictive single-family zoning classification. GX 1105.10.
In late summer of 1971, the City Council voted seven to six to approve the project but then immediately voted unanimously to reconsider the vote and referred the matter to the Real Estate Committee, which was chaired by Iannacone. GX 1105.14. A press account, the accuracy of which was confirmed by Iannacone at trial, reported that the site had been "buried" in Iannacone's committee, and that he had "vowed not to let the project out of his committee until he had the council votes to kill it." GX 1105.16; see also Tr. 933 (Iannacone). The article also reported that the project had "created opposition among area residents, mostly white, who are fearful that black and Puerto Rican families would move in." GX 1105.15. Iannacone's position was reported to be that he was now in favor of senior citizen housing for the site but against housing for families because parking, traffic, and local services would be strained." Id. No further vote was taken on the site by the City Council, id., and Iannacone again tried (but again without success) to have the zoning of the site reclassified from multi-family to single-family. GX 1105.21; 1105.23.
Iannacone acknowledged that his publicly stated reasons for opposing the project were pretextual, and that his opposition in fact was in response to his constituents' racially influenced opposition. Tr. 991-993, 1526-29. The words "low-income," Iannacone explained, connoted "poverty, minorities, blacks, Puerto Ricans or Hispanics." Id. at 994. Senior citizen housing created less opposition, according to Iannacone, so long as the words "low income" were avoided. Id.
4. Seven Pines
During that same summer, HUD notified the City that its continued receipt of urban renewal funds would be conditioned on the approval of a site for subsidized housing that was outside the City's areas of minority concentration. See HOUSING IV.C.5 infra. As a result, scattered site housing once more became (as it had been during the time of the Candeub & Fleissig survey) a highly public issue.
The site of the Seven Pines project, located in the third ward on the northern border of Southwest Yonkers, was not considered by City officials to be a "scattered site," but in January of 1972, James Walsh, the newly elected councilman for the third ward, sought to rescind the City's agreement with the UDC to build the project, arguing that it could lead to scattered site housing.
The Seven Pines site was among those listed in the original April 1970 draft agreement with the UDC but was dropped from the first round of UDC projects apparently out of concern on the part of City officials that too much tax abatement not be granted at once. The site was considered again by the UDC in April of 1971 along with two east side sites (the Robin Hill Day Camp site and a site at Mile Square and Tuckahoe Roads), GX 1098.15, and in June of 1971 the City Council authorized a memorandum of understanding with the UDC for the construction of 300 units of subsidized housing on the Seven Pines site. C-753.
The Seven Pines site was considered by City officials to be in a deteriorating neighborhood. A "mass exodus" of whites was believed to have occurred over the preceding decade, GX 1119.85, and City officials expressed the hope (as they had with respect to Riverview as well) that the Seven Pines project would "stabilize" the area and bring middle-income whites back to Southwest Yonkers. Id. ; GX 1119.44; GX Tr. 901, 903-04 (Yulish); Webdale Dep. 434. The City Council's approval of the proposed project was unanimous. C-753.
A number of months later, however, in January of 1972, the project came before the City Council again to obtain a waiver of several aspects of the City's Building Code and local zoning requirements with respect to height. Public hearings were held, and the newly elected ward councilman, James Walsh, vigorously opposed the project, seeking first (unsuccessfully) to rescind the UDC agreement and then seeking to defeat the zoning and building waivers that were required for the project to go forward. See, e.g., GX 1119.8; 1119.19; 1119.62.
Walsh's campaign against the project lasted some three months during which time he assailed the height of the building, its likely effect on area schools and traffic, the "windfall" the developer had received in selling the property to the UDC, and the loss of tax revenue created by an "unnecessary" tax abatement for a middle income building. Id. The arguments were characterized by Webdale as "the typical litany of issues." Webdale Dep. 432-33.
Walsh also argued, however, that Seven Pines represented a threat that a site on the east side of the City would be developed next, GX 1119.8, 1119.20, and, in the words of a UDC memorandum summarizing the situation, that the "defeat of this project by a unified front would guarantee that no scattered site developments would occur." GX 1119.20.
In response, City and UDC officials discussed the usefulness of meeting with Walsh to assure him that no additional sites would be chosen without consulting the ward councilman, GX 1119.21. In addition they publicly made statements to that effect, GX 1119.8, and privately considered whether the UDC should, if necessary, invoke its override powers. GX 1119.10.
When Walsh's efforts to stop the project failed, he introduced a resolution addressed to "the majority of councilmembers" who supported Seven Pines and who, "in opposition to the objections of community organizations throughout the City," have "expressed the concept of supporting subsidized housing ... throughout the City." GX 1119.62. The resolution called on those councilmembers to submit to the agenda of the City Council, at the next regularly stated Council meeting, a firm Resolution giving one site, located within the confines of the Ward they represent, on which they confirm their support for subsidized housing, through either URA or UDC auspices, allowing them to build with complete impunity of zoning laws, confirming their willingness to give tax abatement on such structures and re-confirming their support of the Seven Pines concept as being the proper housing concept for the future of the City of Yonkers.
Id. The Council voted 8 to 5 to refer the resolution to the Real Estate Committee, from which it appears never to have emerged.
Three months after the end of Walsh's campaign against Seven Pines, and in response to a year of steady pressure from HUD to approve a site for subsidized housing that was outside the City's areas of minority concentration, the City Council approved a site on Yonkers Avenue immediately west of the Saw Mill River Parkway.
Since at least mid-1970, HUD had been actively encouraging the City to adopt a "balanced housing program."
In July of 1971, it determined that stronger action was required. During that month, Grace Malone, the Director of the Fair Housing and Equal Opportunity Division of HUD's New York Area Office, wrote a memorandum concluding that the City of Yonkers' relocation housing programs were in violation of the civil rights laws and recommended disapproval of the City's Year II NDP application (the major source of federal urban renewal funds for the City). P-I 180-249. The basis of Malone's conclusion and recommendation was the City's failure to provide relocation housing opportunities for minorities outside of areas of minority concentration. Id.
As a result of Malone's memo, Malone and other HUD representatives held a series of meetings with City officials in July through November of 1971. The City was advised to submit substantiation of its "alleged efforts to achieve balanced site selection in Yonkers"; a submission was made; and HUD officials concluded at an internal meeting that the "program management staff should immediately impress upon the applicant the urgency for presenting sites for development outside Southwest Yonkers." P-I 180-256.
On September 3, 1971, Walter Webdale and City Manager Seymour Scher met with HUD officials and identified eight sites outside of areas of minority concentration that "could be pursued." Id. Four were in East Yonkers (including the Robin Hill Day Camp and Mile Square/Tuckahoe Road sites which had appeared in the April 1971 draft agreement prepared by the UDC); two sites were in Northwest Yonkers; one was just north of the Seven Pines site; and the remaining site was in far Southwest Yonkers. Id.
In November, Malone revised her recommendation regarding the City's NDP application to conditional approval, with the condition being that the next housing site selected by the City be one of the eight sites identified by Scher and Webdale. Id. This specific condition apparently was never communicated to City officials, but it was made clear that HUD would require a site outside the City's areas of minority concentration, and that the HUD officials involved preferred a site East of the Saw Mill River Parkway. Tr.840-411, 863-65; 1128-33 (Yulish); see also, e.g., Cola Dep. 147-51; Tr. 1004-06 (Iannacone).
The task of finding an acceptable site fell principally to Morton Yulish, who had come to Yonkers in October of 1971 as the first Administrator of the City's newly created Department of Development.
Yulish testified that he had frequent discussions with Mayor Del Bello and City Manager Scher about scattered site housing, and that they told him, in essence, that they had been unsuccessful in achieving it, and that it was his turn now. Tr. 845-46. In addition, Yulish testified that Del Bello and Scher explained that City Council approval would be required for any site, and that it would be hardest to obtain for sites East of the Saw Mill River Parkway "given the lack of support for such housing from those constituencies and the Council's historic lack of ... guts ... in dealing with these kinds of unpopular matters." Id. at 849-50.
Former Mayor Del Bello testified more diplomatically, but to the same effect. He explained that East side councilmen were subject to a "terrible amount of pressure" from their constituents to oppose subsidized housing proposals, and that "in almost every case the councilman was forced to respond to that pressure." Tr. 1197-98. Del Bello also confirmed that the opposition of the East side councilman had been effective. All of the City's subsidized housing projects were located in the Southwest, he testified, because "councilmen wouldn't approve sites in any other areas. There were the only sites we could get approved." Id. at 1193.
In describing his efforts to find a scattered site, Yulish testified that "quite honestly we were looking for the most politically doable route. The first way to do that was to find a site outside of racial impaction, but not wholly on the east side, which would have been the preferred route, but we did not limit ourselves to that. We sent out and looked at sites all over Yonkers." Id. at 865.
Yulish testified that on some of the trips he was alone, "just doing reconnaissance," that on some he was with the field staff to analyze suitability, and that others "were political excursions" in which Yulish, Scher, and on occasion Planning Director Pistone, would go and "test the political waters with the particular councilmen." Id. at 866-67. Pistone's testimony with respect to his dealings with Yulish (and indeed his testimony with respect to all "political" matters) was characterized by a professed inability to recollect, and an obvious unwillingness to discuss, the subject. Pistone testified that he "vaguely" recalled being asked by Yulish whether the political obstacles with respect to certain East side sites were surmountable, and that he "might have said" that they weren't surmountable. Tr. 9897-98 (Pistone).
Yulish testified that from the fall of 1971 to the spring of 1972 he spoke, at least in general terms, with all of the East side councilmen, and attended a dozen or more meetings with neighborhood associations that he described as unforgettable because of the hostility he encountered. Id. at 865-67; 1060-64. In addition, he testified that his efforts to secure support for an East side site were particularly hampered by the activities of what he termed the "hit squads" or "truth squads," whose active members included third ward Councilman James Walsh and Angelo Martinelli, the Republican candidate in the 1971 mayoral campaign. Tr. 899-901. According to Yulish, these groups would visit the neighborhood associations, sometimes at the same time that Yulish and other City officials did, other times separately, and vocally oppose the administration's housing program, arguing, for example, that allowing the UDC to build in Yonkers was a violation of home rule, or that the City should be trying to attract industry, not building housing. Id. Also involved in what Yulish characterized as the "constant attack" and attempts to keep the issue of subsidized housing "at a boiling point" was the Yonkers Home News and Times, a weekly paper published by Mayoral candidate Martinelli's brother. Id.
Soon after the November election, The Herald Statesman, the City's daily newspaper, published the results of a poll among new councilmembers on the issue of scattered site housing. GX 1098.70. Five were opposed; two were in favor (Councilmen Eisen and Chema from Southwest Yonkers); and six declared themselves undecided (among them newly re-elected Mayor Del Bello). Councilman Mancusi was quoted as saying he would support scattered site housing only if there were one new project in each ward. Councilman Iannacone stated that he would vote against any new housing proposal unless it had the support of the community. Councilman O'Rourke declared himself "irrevocably against scattered housing," stating that "[a]s a social proposition it is found lacking. Most of these developments will be filled with people from outside Yonkers." Id. ; see also Tr. 1728-29 (O'Rourke).
In December of 1971, Yulish reported to HUD that he would continue his efforts to obtain approval for a subsidized housing site outside of areas of minority concentration but candidly warned that it would have to be "in an area with surmountable political obstacles outside of the areas of concentration." GX 1098.81.
Yulish testified that particular efforts were made to persuade twelfth ward Councilman James McLaughlin to support a site on Texas Avenue. McLaughlin, Yulish explained, was someone willing to talk to them, who wouldn't "immediately to to the press ... saying they are conniving in my ward to build housing and I stopped it ...," Tr. 869, and that he was also "probably the gutsiest one of all who might be willing to take the heat." Id. at 871.
Yulish testified that he, City Manager Scher, and McLaughlin visited the site at dusk to avoid attracting attention, and that he and Scher basically "pleaded" with McLaughlin to consider how critical the Otis expansion project was to the City, and to see that "there were larger issues here than just the political heat of a group of neighborhood people screaming and yelling for their narrow self-interest." Id. at 869-70. City Manager Scher, according to Yulish, "bent over backwards" to offer McLaughlin and other ward councilmen benefits such as street work or a small park that they could use to persuade their constituents to accept a subsidized housing project. Tr. 870-71.
According to Yulish, McLaughlin asked for time to "test the waters," saying he wanted to do it but knew it was "going to be hell." Tr. at 871. McLaughlin acknowledged at trial that his eventual answer to Yulish was that it would be "political suicide" to support the site. McLaughlin Dep. 98-99; see also Tr. 871. (Yulish).
Yulish also testified to meetings with eleventh ward Councilman John Hanney, second ward Councilman Peter Mancusi, and fifth ward Councilman Andrew O'Rourke. In each case, according to Yulish, the councilmen set up meetings with neighborhood associations, which invariably proved to be hostile, and following which the councilman deferred to the wishes of his constituents. Tr. 865-66, 871-78, 880-81.
Councilman Hanney, according to Yulish, just "sat back and watched us get crucified." Id. at 872.
Similarly, Yulish testified, Councilman Mancusi arranged an unforgettably "chaotic" meeting with the Lincoln Park Taxpayers Association regarding possible use of the old Lincoln High School site, and then asked Yulish after the meeting "What do you want me to do? I don't control them. They elect me." Tr. at 881; see also Tr. 865.
Yulish's encounter with Councilman O'Rourke concerned the Robin Hill Day Camp site in far Northeast Yonkers, which had been mentioned several times in recent years as a possible site for subsidized housing.
Yulish testified that like the other east side councilmembers, O'Rourke suggested that they "take it to the neighborhood," and that he would go by what his constituency told him. Tr. 877. Yulish testified that the meetings were "hostile" and "highly emotionally charged," and that afterwards O'Rourke simply told him that he "didn't think it would work." Tr. 877.
Former councilman O'Rourke disclaimed any recollection of the meetings with Yulish, and testified that he believed he would have remembered such meetings if they had occurred. Tr. 1688-90. He did, however, acknowledge that not long after the time during which the Robin Hill site repeatedly arose as a possible site for subsidized housing, he changed his position on the use of the site for conventional multifamily apartments, and subsequently supported (for the first and only time in his eight years on the Council) the zone change needed to permit such a use. Tr. 1680-84; 1690-93; 1726-27. O'Rourke also acknowledged that the developer's proposal contained a restrictive convenant limiting the use of the property to luxury low-rise condominiums. Tr. 1690-93.
In the spring of 1972, Yulish invited the Regional Director of HUD's New York Area Office, S. William Green, to visit Yonkers. Yulish testified that he hoped Green would "jar the Council" into taking seriously its obligation to build housing outside of areas of racial concentration. Tr. 1139.41.
Green came to Yonkers in early April and told City officials that if the City did not build subsidized housing outside of its inner city areas, it would in effect be disqualifying itself from millions of dollars in federal redevelopment funds. Tr. 1140-50 (Yulish); GX 1207.10; 1119.132. The clear substance of Green's message, according to Yulish, was that "enough is enough in this particular area." Tr. 1147-50. Yulish asked HUD to confirm in writing that the Otis expansion NDP grant was conditioned upon approving a scattered housing site, GX 1119.130, and HUD replied that all of the City's urban renewal funds would be cut off unless a scattered site was approved. GX 1119.32.
Shortly after Green's visit to Yonkers in early April, City officials and the UDC took action on plans for a 324-unit subsidized housing project that had been proposed by a developer several months earlier. C-778; C-780; C-781; C-783; C-784. The site of the proposed project was the so-called RAMP site on Yonkers Avenue next to the Saw Mill River Parkway. The site was on the border of the predominantly white neighborhood known as Nodine Hill, and had been proposed for public housing a number of times in the preceding decade but strongly opposed by area residents and Ward Councilman Moczydlowski. See HOUSING III.B and III.D.
Unlike previous years, however, City officials were able to win Moczydlowski's support. A major reason for their success in doing so appears to have been the fact that many of Moczydlowski's constituents were employed by Otis Elevator Company and faced the loss of their jobs if the City forfeited its federal urban renewal funds for the Otis expansion. Tr. 885-86; 1013-14 (Yulish).
Nonetheless, Moczydlowski expected, and in fact received, pressure to oppose the project from his constituents. Tr. 1018 (Yulish). Councilman Cola described the public hearings on the project as so "volatile" that you were lucky "if you remembered your name after you left there." Cola Dep. 149. Yulish testified that the crowd "filled out into the hallways" at the hearings, with action on the site deferred at least once in part because of the Council's reluctance to act" in the midst of this fury." Tr. 1022.
City officials met with Moczydlowski numerous times during the course of neighborhood and City Council meetings to "bolster his support for the project." Id. at 1019. Design changes were made to respond to community concerns that the access route to the project not run through a single-family area, id. and the councilman was not discouraged from telling his predominantly white constituents that they would be given preference in the rental of the project. Tr. 1015, 2142-45, 2148-49.
The project was unanimously approved by the City Council in June of 1972. GX 1119.100. A short time later, Councilman Moczydlowski resigned his seat on the Council and accepted an appointment as City Clerk. Councilman Cola testified that it was commonly accepted that Moczydlowski's prospects for re-election were "not too great," and that his appointment as City Clerk was no coincidence. Cola Dep. 97-98.
The Parkledge project was offered to HUD as the City's "precedent toward creating greater mobility to minority families and individuals." P-I 180-281. In fact, however, Parkledge proved to be the City's last new construction subsidized housing project for families. Although the UDC continued for a time to have access to a sizable supply of § 236 funds (despite a nationwide moratorium imposed on the program in January of 1972), and encouraged the City to "take advantage" of those available funds, no new family projects were pursued. GX 1120.59. In January of 1974, Angelo Martinelli took office as Mayor, having strongly advocated during his campaign that the City impose its own moratorium on subsidized housing, Tr. 7432-33 (Martinelli), and no additional projects were approved for a number of years. When subsidized housing development for families resumed, it was initially limited to the rehabilitation of existing structures in Southwest Yonkers. Subsequently, the City agreed, at least in theory, to support the construction of subsidized housing for families in East Yonkers, but as late as 1982, the City Council had yet to support a specific site. See HOUSING V infra.
D. The City's Explanations for its Confinement of Subsidized Housing to the Southwest
The City contends that its confinement of nearly 3,000 units of new subsidized housing to Southwest Yonkers during this period occurred for reasons unrelated to any racially influenced community opposition to the placement of the housing elsewhere; and it has offered a number of arguments in support of that contention.
Viewed in the context of the record as a whole, the arguments are not persuasive. Some are not supported by the record. Others are of marginal relevance. Still others suggest only that many of the City officials involved with subsidized housing during this period were otherwise well-intentioned individuals who accepted the constraints imposed by the racially influenced opposition to subsidized housing in East and Northwest Yonkers, but within those constraints, attempted to do as much good as possible. Whether taken singly or collectively, the City's arguments fail to alter the conclusion compelled by the record as a whole that the confinement of subsidized housing to Southwest Yonkers was, as Mayor Del Bello himself suggested, due to the fact that Southwest sites were the only ones that the City Council would approve. Tr. 1192-93.
1. Reliance on HUD's Express Directions
The City first suggests that the decision to confine subsidized housing to the Southwest was largely HUD's. In support of that suggestion, the City points to the testimony of Walter Webdale, the City's Director of Urban Renewal from 1967 to 1971, who stated that the City's exclusive focus on the Southwest for subsidized housing was due, at least in part, to express instructions from HUD officials to build relocation housing in or near the City's urban renewal areas. Webdale Dep. 154, 156, 165-66.
However, there is little evidence to support Webdale's suggestion that HUD instructed the City to concentrate exclusively on sites in the Southwest, and considerable evidence to the contrary. No other City official testified to having received, or heard of, such an instruction. No HUD official testified to having given such an instruction. Indeed, at least one HUD official expressly testified that the location of subsidized housing was for the locality to determine. Tr. 5612-13 (Lapadula). Nor has the City pointed to any written instruction from HUD either requiring or suggesting that only sites in and around urban renewal areas be considered.
To be sure, there was a very real economic advantage to be gained from choosing urban renewal land as the site for a subsidized housing project: the land could be sold to the developer at a greatly reduced price with the federal government subsidizing much of the price reduction. Tr. 5860-63 (Lapadula). That economic advantage falls short of a formal restriction of subsidized housing to urban renewal areas. Nor could it even be argued to have operated as a de facto restriction since most of the City's subsidized housing projects were in fact not located within urban renewal areas.
Similarly, there is little dispute that HUD's policies over the years reflected changing views and emphases, and that at least in the mid-to-late 1960's, there was a general concern about avoiding the charge made in earlier years that urban renewal too often involved "black removal" -- that is, the clearance of an area of its largely minority occupants, with no provision made for relocation housing. See, e.g., Tr. 10,692-95 (Portman). In light of this general concern, it is reasonable to assume that HUD may have encouraged the City to put some of its relocation housing near the major urban renewal areas. Cf. Tr. 8698-704 (Kane). There is no basis for concluding, however, that HUD directed the City to locate all of its relocation housing in or near urban renewal areas -- particularly in light of the concern expressed by HUD as early as 1966, and steadily from mid-1970 on, about the segregative effects of concentrating all subsidized housing in the City's downtown area. See HOUSING III.D and IV.C.5, supra.
In addition, the contemporaneous actions of Webdale and other City officials further suggest that HUD did not instruct the City to confine subsidized housing to urban renewal areas or their immediate vicinity. Webdale acknowledged that he himself looked at sites that were removed from urban renewal areas, see Webdale Dep. 58, 137, 479, and his office at least once publicly stated that after completion of Jefferson Terrace (the first privately sponsored subsidzed housing project), other projects would be built on scattered sites throughout the City. GX 1079.66. The City and the UDC also hired the firm of Candeub & Fleissig to survey the City and identify possible sites for relocation housing -- a considerable waste of time and money if relocation housing were in fact limited to sites in and around urban renewal areas. Moreover, even assuming the unlikely proposition that Candeub & Fleissig somehow misconstrued its assignment, the furor that erupted when the survey was released could have been easily put to rest by announcing that HUD had directed relocation housing to be placed only in and around urban renewal areas. It seems highly unlikely that City officials would have forgone such an easy means of defusing community opposition if, in fact, it had been available to them. Yet, recalling the pattern of previous years, the only apparent mention of restricting relocation housing to urban renewal areas was made by a representative of a Northeast Yonkers neighborhood group. See GX 1096.65.
Finally, we note that Webdale himself appeared to retreat somewhat from his broad statements about HUD's policy on relocation housing by acknowledging later in his testimony that HUD's instructions may have related only to the Stage II urban renewal area. Webdale Dep. 499-500.
However, even if limited to the re-use of the Stage II urban renewal area, Webdale's testimony is still at variance with the record as a whole. Webdale testified that while the re-use of the Riverview urban renewal area may have been a "local determination" in theory, the decision to have at least some residential re-use in fact was made by HUD. Webdale Dep. 29-33, 588-90. According to Webdale, residential re-use was mandated by HUD so that relocation housing would be available for those displaced by the Stage II and other urban renewal projects. Id. at 33.
However, the statutory requirement, and HUD's general policy, was merely that relocation housing be provided somewhere within the locality. See, e.g., Tr. 6936-37 (Schiffman). Only if it were deemed difficult or impossible to place relocation housing elsewhere would such a requirement become, in effect, a requirement that urban renewal areas be used for relocation housing. There is no question that HUD made the statutory requirement with respect to relocation housing clear to City officials. Any conclusions about the effect of that requirement in Yonkers, however, appears to have been made by City officials themselves rather than HUD.
Webdale's testimony that HUD determined the specific re-use of the Stage II urban renewal area was not supported by any other City or HUD official. Indeed, Planning Director Philip Pistone testified directly to the contrary. Tr. 9865, 10,008 (Pistone).
In addition, the record indicates that the issue of re-use was vigorously debated by City officials. GX 1057.1; C-254; C-259; C-262. The Master Plan called for commercial re-use of the area, and prior to the reduction of the project size by HUD in 1965, commercial re-use indeed had been contemplated. Planning Director Pistone maintained, as he would continue to do well into 1970 that notwithstanding the reduction in size, commercial re-use of the area was both feasible and essential to the future economic health of the City. Tr. 9864-68, 9877-78 (Pistone); 2779-80 (Arcaro).
Pistone held to his position even after wholly commercial re-use was rejected as unfeasible by several consulting reports prepared for the City in 1966 and 1967 (another curious waste of time and money if in fact the re-use had been determined by HUD). C-255; C-261; C-1546. Pistone contended that the reports were merely statistical studies prepared by people who knew little about Yonkers. C-262. Nonetheless, YURA decided in 1967 to receommend a combined commercial and residential re-use, with commercial development to the north, and residential development in the southern portion of the urban renewal area. C-262; GX 1079.
To be sure, there is evidence that the need for relocation housing figured in the re-use determination. See, e.g., Tr. 9866 (Pistone). However, there is little if any indication in the contemporaneous evidence of the re-use debate that any City official (including Webdale himself) believed that as a matter of HUD policy, the urban renewal area could not be put to solely commercial use if an adequate amount of relocation housing were built elsewhere. Instead, the conclusion that appears to have been reached is that other locations were unavailable for such housing. In a June 1967 letter to Congressman Ottinger, most notably, Webdale explained that it was "absolutely imperative that some residential use remain in the Project Area, since the Relocation Program for problem families (i.e., apartment construction under FHA 221(d)(3) depends on this type of housing." GX 1087.12.
The City's prior history of site rejections suggests why those in need of subsidized housing were considered "problem families" in 1967, and the reaction to the Candeub & Fleissig survey two years later made clear that those families would remain a problem. Thus, it is scarcely surprising that immediately following the public reaction to the Candeub & Fleissig survey, City officials doubled the number of housing units previously designated for the Stage II site.
In sum, there is little evidence to support the City's assertion that the decision to confine subsidized housing to the Southwest was largely HUD's. The evidence suggests, instead, a conclusion by City officials that the opposition to subsidized housing outside of Southwest Yonkers effectively transformed the requirement that adequate relocation housing be provided into a need to build as much subsidized housing as possible in the Southwest. The responsibility for that conclusion, however, clearly rests with the City and not HUD.
2. Absence of Private Developer Proposals in the East
The City also argues that the location of all subsidized housing projects in the Southwest during this period can, at least in part, be explained by the absence of proposals by private developers for projects in the East and Northwest -- an absence the City attributes to higher land costs and lack of developer interest in East Yonkers for subsidized housing.
Like the last, this argument in essence seeks to shift the responsibility for site selection to another entity, and like the last, the effort is not persuasive.
The City acknowledges as it must, that the development of subsidized housing projects during this period was by no means the result of the City's passive acceptance of sites brought to it by private developers or the UDC. Beginning with Walter Webdale's arrival in the spring of 1967, the City pursued a course of active support and encouragement of privately sponsored subsidized housing projects in the Southwest. See HOUSING IV.C.1 supra. No comparable outreach was made for the Northwest or East. Indeed, as the City itself points out, its focus on the Southwest was clearly communicated to developers. See City's Proposed Findings of Fact at p. 56-57; see also Tr. 10,182-83; 10,196-97 (Bogdanoff).
In light of the City's actions, the absence of proposals by private developers for projects in the East or Northwest is unsurprising. David Bogdanoff, the builder of Jefferson Terrace and Jackson Terrace, and a participant in the abandoned proposal for family housing on what is now the site of Father Finian Sullivan Manor, testified that in general developers could build only on sites where the local government would provide assisance assistance in acquiring the land. Id. at 10,140-44. Otherwise, according to Bogdanoff, there was no hope of meeting the cost limitations imposed by HUD. Id. Thus, the absence of developer proposals seems less a function of high land costs being unique to East and Northwest Yonkers, than the availability of City assistance being unique to the Southwest.
Similarly unpersuasive is the City's suggestion that those interested in subsidized housing were not interested in locations outside of the Southwest. Bogdanoff made clear that his decision to concentrate on Southwest sites was pragmatic. Choosing the same metaphor used by Mayor Del Bello in his testimony, Bogdanoff explained that he had little interest in "tilting at windmills." Tr. 10,144, 10,229. In Northeast and East Yonkers, Bogdanoff indicated, City support was lacking, community support was lacking, racial fears were strong, and so he decided to "build where we ... could build," produce the housing "now and let the world catch up with this problem," and in the meantime "at least try to set an example in an area where we know the need exits and we know that we have the potential of doing it" as opposed to working on projects "that would never happen." Tr. 10,299; see also 10,143-45, 10-179-80, 10-224-25.
In light of Bogdanoff's own experience with the Father Finian Sullivan site, see HOUSING IV.C.3 supra, his conclusion that a project "would never happen" without community or City support seems particularly sound. And especially after the reaction to the Candeub & Fleissig survey, there could be little reasonable expectation of community or City support of a site in the East or Northwest. Thus, the absence of private developer proposals in the East or Northwest is neither surprising nor at variance with the conclusion suggested by the record as a whole. A builder's understandable reluctance to risk the loss of time and money on projects that are likely to be opposed by the community (and therefore by the City as well) says little about what the builder would have done if either community or City support had been a realistic possibility.
The City cannot participate in the creation of an atmosphere that would strongly discourage proposals for subsidized housing in East or Northwest Yonkers, and then defend the resulting concentration of subsidized housing in the Southwest on the ground that there were no proposals to put it elsewhere.
3. Support for the Projects Among the Minority Community
The City also argues that the support of the minority community for subsidized housing in Southwest Yonkers during this period precludes a finding that the City acted with segregative intent. In this regard, the City emphasizes that both the privately sponsored and UDC-sponsored projects were supported by, and in three cases even initiated by, the minority community in Southwest Yonkers.
The Messiah Baptist project was proposed and sponsored by the Messiah Baptist Church. C-539; C-5443. Waverly Arms was proposed and sponsored by the Community Memorial CME Church. C-554 through C-557. And Whitney Young Houses, one of the first-round UDC projects, was proposed and co-sponsored by the Yonkers Community Improvement Corporation (YCIC), a predominantly minority community group, and the Westchester Urban League. C-643, C-644; Gunthorpe Dep. 22; Lenaz Dep. 20-25, 66.
In addition, two of the other first-round UDC projects, the Dorado and the Frazier Homes, which were located near the Otis Elevator expansion area and designated as relocation housing for the predominately minority residents of that area, appear to have been supported by the surrounding community, see, e.g., Tr. 1346-47 (Del Bello), and there is also evidence of support among the minority community for Parkledge, the UDC project located on Yonkers Avenue, immediately west of the Saw Mill River Parkway. See, e.g., Tr. 2269 (Yulish); 578-79 (Gibson); but see Tr. 8385-87 (Keith).
The City can scarcely maintain, however, that its officials believed that the minority community in Yonkers wanted all subsidized housing confined to the Southwest section of the City.
As early as 1959, minority groups had begun expressing concern about the segregative effects of locating subsidized housing in heavily minority areas, see HOUSING III.B supra, and from the mid-1960's on, there is evidence of regular and often public expression by minority and other community groups, and even by some City officials, of support for the concept of scattered-site housing, and concern about the segregative effects of concentrating the City's subsidized housing in one part of the City. In November of 1970, for example, a Southwest Yonkers community group wrote to protest the "oversaturation of low-income housing" in the area, contending that the continued concentration of such housing there would "inevitably lead to the creating and perpetuating of ghettoes." GX 1094.50. Similarly, in April of 1972, a petition from the "residents and property owners of the Hollow" urged the City to adopt a policy of scattered-site housing, contending it was "morally right and [would], in the long run, benefit the entire city. GX 1144.11. See also, e.g., GX 1074.5; 1079.7; 1081.7; 1081.8; 1093.8; 1098.86; 1119.67; 1119.81; 1119.86; 1119.136; 1144.8-.10; 1144.13; 1176.16; 1206.2; HOUSING III.D supra.
To be sure, there is also evidence of concern among some members of the minority community about preventing the phenomenon of "black removal." Indeed, that concern appears to have figured in the support among the Otis relocatees for the Dorado and Frazier Homes, and in the sponsorship of Whitney Young Manor in the Hollow, where there was considerable racial tension between the older, largely Slavic, millworkers who lived there and the steadily increasing number of black and hispanic residents. See, e.g., Lenaz Dep. 42-43, 250-51; GX 1144.5.
But if the City seeks to characterize its selection of sites for subsidized housing as a response to the concerns of the minority community, then it was, at best, a one-sided response. Concerns about the ability to remain in Southwest Yonkers were accommodated. Concerns about having the opportunity to live elsewhere in Yonkers were not.
Moreover, as the City itself has stressed, the Southwest community, both white and minority, was faced with housing conditions that could fairly be characterized as desperate. See, e.g., 1083.41. The residents of the Northwest and East could comfortably ignore the need for subsidized housing and urban renewal in Yonkers. The residents of the Southwest could not. And given the public reaction to the CAC list in 1967, the Bronx River Road sites that same year, and the Candeub & Fleisig Fleissig survey in 1969, one could well conclude, as indeed several witnesses suggested they did, that the possibility of obtaining City Council approval for sites outside of Southwest Yonkers in the foreseeable future was remote. See, e.g., Tr. 7252-53 (King); 536-40, 564-66, 573-75 (Gibson). Thus, even if the minority community had not made its support of scattered-site housing clear, there would have been little basis under the circumstances that prevailed in Yonkers for construing minority proposals or support for individual projects as an expression of preference for having all subsidized housing located in Southwest Yonkers.
No City official testified that he believed that the minority community wanted to confine subsidized housing to the Southwest. To the contrary, many City officials -- including Mayor Del Bello and Walter Webdale -- acknowledged their awareness of that community's desire to disperse the housing throught throughout the City. Tr. 1313-15 (Del Bello); Webdale Dep. 318, 488; see also, e.g., Tr. 9772, 9992 (Pistone); 845-46 (Yulish). Even Gerald Lenaz, a program manager for the UDC, who met with community groups in connection with most of the first-round UDC projects, and who testified at greatest length about "black removal" concerns, acknowledged that minority groups also expressed considerable frustration at the City's refusal to approve sites outside of Southwest Yonkers. Lenaz Dep. 242-43.
Similarly, no City or UDC official suggested that the site for Parkledge was chosen over East side sites because of a belief that minorities preferred to remain in Southwest Yonkers. Nor could minority support of Parkledge reasonably be construed as such a preference. At HUD's insistence, the City had at last designated a site outside of an identifiable area of minority concentration, and it was a site that had been vigorously and successfully opposed in the past. See HOUSING III.B and III.D supra. Although the site, like all the others, was in Southwest Yonkers, and although, as CDA employee Herman Keith observed, the site was adjacent to the heavily minority area of the Hollow, Tr. 8385-87, it unquestionably represented at least some progress. Thus, the existence of minority support is not surprising. As William Gibson, a black resident of Yonkers and member of the UDC-CAC succinctly explained, "at least we could see" the Saw Mill River Parkway from Parkledge, "and the next step might win us over." Tr. 578-79.
Far from negating the suggestion that City officials acted with segregative intent in their selection of sites for subsidized housing, the evidence concerning the position of the minority community makes clear that both the public and City officials were acutely aware of the potentially segregative or integrative effects of site selection.
4. The Unsuitability of East Side Sites
The City also contends that the various sites considered in East and Northwest Yonkers during this period were, for reasons unrelated to any racially influenced community opposition, generally not suitable for subsidized housing. According to the City, the sites listed in the Candeub & Fleissig survey, as well as the other East side sites that were considered for possible UDC projects during the HUD-mandated search for a "scattered site," presented significant problems relating to cost, zoning, topography, traffic patterns, proximity to public facilities, and various other physical planning considerations.
However, there is little persuasive evidence to suggest that any of the sites proposed outside of Southwest Yonkers were in fact rejected on the basis of planning criteria. With respect to the Candeub & Fleissig sites, for example, Planning Director Pistone testified that he "never had much of an opportunity to do anything with those sites. Tr. 9771. Nor, it would appear, did any other City official. The list was announced, successfully campaigned against by Mayoral candidate Del Bello, and promptly abandoned upon his election. See HOUSING IV.C.2 supra.
To be sure, the quality of the Candeub & Fleissig survey was roundly criticized by the City and UDC officials who testified. Walter Webdale, for example, discussed it as little more than "a catalogue of vacant land." Webdale Dep. 66; see also Logue Dep. 72, 74, 195 ("a buckshot thing"; did not present UDC with "an abundance of easy choices"); Tr. 1284, 1295-97 (Del Bello) (included unrealistic, foolhardy, ludicrous sites). And it may well be the case that some of the sites were in fact "ludicrous" from more than a political perspective. However, even with respect to the eleven sites selected by Pistone and others for further study -- at least some of which Pistone characterized at the time as feasible -- Tr. 9767-68, 9873, 9942 (Pistone), City officials appear to have simply assumed that the sites were not feasible, rather than determining whether or not they were.
Similarly, although the City contends that the RAMP site "emerged" as the most feasible "scattered site," it is not apparent from the record that this process of emergence was governed by planning criteria. The single east side formally identified to HUD as an alternative that was considered but rejected was the old Lincoln High School site -- a site Planning Director Pistone characterized as suitable, but which was the subject of one of the "unforgettable" neighborhood association meetings testified to by Morton Yulish. C-802; Tr. 9896-98 (Pistone); see HOUSING IV.C.5 supra. Other east side sites were apparently considered by the UDC but not pursued for reasons unspecified in the record. When asked about various sites, Walter Webdale (who by then had moved to the UDC) stated simply that the sites the UDC pursued were those that got a positive response from the City. Webdale Dep. 661-63. He went on to acknowledge that the only such site was the RAMP site. Id.
Thus, here too the evidence suggests a presumption rather than a determination that east side sites were unsuitable.
In the Southwest, by contrast, particularly with respect to the first-round UDC projects, there appears to have been a presumption in favor of suitability. As noted earlier, none of the new sites in the first-round projects (Whitney Young, The Dorado, and Frazier Homes) were submitted to the City Planning Board for review; nor was the decision to double the number of units for the Riverview site. Riverview I and II were approved without a firm indication of the income-mix of housing that could be put there (a curious gap for what was considered the centerpiece of the City's efforts to lure middle and upper income whites back to the Southwest). See HOUSING IV.D.5 infra. The Dorado and Frazier projects were approved without any financial feasibility study whatsoever; and when one was undertaken several months later, the donation of City-owned land (in addition to the tax abatements contemplated) was required in order to make the projects feasible. C-617. Similar City assistance was also required for Whitney Young (in the form of the donation of City owned land), C-616; for Parkledge (in the form of an after-the-fact declaration of part of the site to be an urban renewal area in order to enable a federally subsidized write-down of land costs), C-787; and for Jefferson Terrace, Messiah Baptist, and Waverly Arms (in the form of a discounted sale of land condemned or otherwise acquired by the City) GX 1079.61a; 1083.25; 1084.21.
In addition, it is noteworthy that many of the Southwest sites were far from perfect from a physical planning perspective. For example, Jackson Terrace, Messiah Baptist, Parkedge and the Buena Vista projects all required variances for the absence or inadequacy of parking facilities. GX 1081.16a; 1082.32; 1083.25; Tr. 2129 (Yulish). Jackson Terrace, Messiah Baptist, and Seven Pines exceeded height restrictions and required variances on that ground. GX 1083.25; 1120.35; Tr. 10,185 (Bogdanoff). Jefferson Terrace, Jackson Terrace, Messiah Baptist, and Parkledge had topographical problems which added to construction costs. GX 1082.1; Tr. 10,185, 10,208, 10,213 (Bogdanoff); Tr. 1031 (Yulish); Webdale Dep. 227-28. The Dorado and Frazier Homes were in areas zoned for commercial or industrial use. GX 1120.35; P-I 122-23. Whitney Young was in a area designed in the Master Plan for industrial re-use. Tr. 9822 (Pistone). Riverview I and II were in an area designated in the Master Plan for commercial re-use. Tr. 9515 (Pistone). Parkledge was located on a heavily trafficked street, was relatively far from shopping, and was served by schools considered to be overcrowded. Tr. 1031 (Yulish); 9774 (Pistone); Webdale Dep. 261-63; GX 1098.85; see also GX 1060 (on the objections raised to the site by area residents in 1956). Parkledge also required a choice between routing the project's traffic through a single-family neighborhood or creating a dangerous left-turn onto Yonkers Avenue. (The latter was chosen over the objections of the City's traffic planners). Tr. 1023-26 (Yulish).
Similar and even identical problems have been offered to explain why particular sites outside of Southwest Yonkers were rejected or never seriously pursued. Yet, all of the Southwest sites described above were approved, most with little hesitation, while sites outside of Southwest Yonkers were rejected with little apparent study. Significantly, not a single City official testified that he believed there to be an absence of suitable sites for subsidized housing outside of Southwest Yonkers. Indeed, both Planning Director Philip Pistone and former Deputy Planning Director Gregory Arcaro testified that suitable sites were in fact available. Tr. 9749 (Pistone); 2798-800 (Arcaro). Particularly in light of the strong evidence of community opposition to sites proposed outside Southwest Yonkers, there is no basis in the record for concluding that the apparent presumption against East and Northwest sites was motivated solely (or even largely) by planning criteria.
The City has also suggested that because § 236 projects were subject to land acquisition and construction costs calculated on a per unit basis, sites in the Northwest and East were generally not feasible unless legitimate standards of acceptable density were compromised. However, the cost limitations imposed upon § 236 projects were by no means cast in stone. See, e.g., Tr. 6942-46, 7078-87 (Monticciolo). The land acquisition costs for the Messiah Baptist project in Southwest Yonkers, for example, far exceeded the applicable ceiling. C-1706. Similarly, the UDC routinely exceeded § 236 cost limits, and even specicially advised the City that it had the ability to underwrite excess land acquisition costs. Tr. 853-54 (Yulish).
In addition, there is no persuasive evidence to suggest that the same techniques used to reduce land costs in Southwest Yonkers -- that is, donation or below-market sale of land owned or acquired by the City, or the designation of pockets of blight as urban renewal areas -- could not have been used in East and Northwest Yonkers. In fact, a survey of City-owned land was even urged by the UDC in 1971 and acknowledged to "make sense" by City Manager Seymour Scher. GX 1098.1. The technique of aggregating projects that was was used to make the 28-unit Frazier Homes project feasible could also have been considered for sites owned outside of Southwest Yonkers as could the techinque of combining subsidized housing with other structures such as commercial facilities or even a school (as was done with respect to Riverview I and II).
Moreover, it bears emphasis that Northwest and East Yonkers were by no means exclusively single-family areas. Multiple family dwellings were prevalent and steadily increasing, see fn. 36 supra, thus making generalizations about acceptable density likely to be over-simiplifications.
To be sure, serious questions of policy are implicated whenever a tax abatement is granted or City land is donated or sold at a discount, and it is not inconceivable that a locality might conclude, even in the absence of community opposition, that such actions are inappropriate in particular areas of the City. However, these issues of policy appear to have been raised not by City officials, but by area residents in petitions and at emotion-filled meetings. There is no evidence of any reasoned debate of the issues among City officials.
The apparent absence of any serious consideration of East side sites is particularly noteworthy in view of the significant disadvantages of the course being followed by the City. Land that was zoned or designated for commercial or industrial use was given over instead to housing at a time when it was generally agreed that serious efforts should be made to increase the City's industrial and commercial tax base. See, e.g., Tr. 2870 (Arcaro). Subsidized housing was increasingly concentrated in and around the downtown area despite warnings that it could further hinder the prospects for commercial revitalization. See, e.g., Tr. 2779-82, 2865-70 (Arcaro); 9773 (Pistone); GX 1172.1; 1080.8; 1090.5; 1093.8. Yet, there is little evidence that the pros and cons of dispersing at least some of the City's subsidized housing were ever seriously considered by City officials. Not even when the failure to designate a site in East Yonkers risked the loss of the City's badly needed urban renewal funds is there any apparent evidence that East side sites were considered beyond a preliminary testing of the "political waters."
The apparent absence of any serious consideration of specific East side sites merely reinforces the suggestion of the record as a whole that the option of putting subsidized housing in East Yonkers was not considered politically feasible.
In addition, the history of the City's § 23 Leased Housing Program provides further indication that the total confinement of subsidized housing projects to the Southwest was not the result of the universal unsuitability of East side sites. Under the § 23 program, the City rented apartments in privately owned buildings and then, using federal rent subsidies, sublet them to low-income tenants.
As City officials acnowledged in descriptions of the program, § 23 housing was specifically intended to promote dispersal of low-income housing throughout a community. P-I 160-36, P-I 160-43. Indeed, Walter Webdale expressly represented to HUD in 1971 that the § 23 program was being used to provide relocation housing "throughout the City." P-I 160-31.
Yet, the record indicates that from the inception of the program in 1969 through its phasing out in the mid-1970's, all, or virtually all, of the leased units were located in Southwest Yonkers buildings. P-I 160-26; P-I 180-249; GX 1176.24; 1176.28; Tr. 2895-97 (Arcaro). The record also indicates that the § 23 tenants were overwhelmingly minority, C-405; P-I 161; GX 1114.6; that when the possibility of renting units in buildings in heavily white areas was first raised at a CAC meeting in 1967, "it was questioned whether realtors and 'city fathers' would approve," GX 1079.6; and that the City in fact agreed to consult with each councilmember before using § 23 housing in his or her ward. GX 1176.17.
Thus, even with respect to a subsidized housing program which the City claimed to be using for the dispersal of low-income housing, and which created few, if any, of the problems traditionally cited as grounds for opposing subsidized housing in the East (zoning, increased density, traffic congestion, etc.), see P-I 160-43, the housing was once again essentially confined to Southwest Yonkers. The result is difficult to explain except by reference to the race of the tenants.
5. Pursuit of a Legitimate Planning Strategy to Use Subsidized Housing to Rebuild the Southwest
The argument most vigorously pressed by the City is that the confinement of subsidized housing sites to Southwest Yonkers during this period reflected a legitimate planning strategy to use subsidized housing to revitalize that section of the City. Subsidized housing was used, according to the City, as a "seed investment" to encourage private-market residential and commercial development in the Southwest, and to encourage a return of middle and upper income whites to the area.
The overall failure of that strategy cannot seriously be disputed. Seven of the eight privately sponsored subsidized housing projects rented up, and remained, heavily minority, with five of the seven having an initial minority tenancy in excess of 80%. C-1650.
Nor did the UDC-sponsored projects fare better. Id. Indeed, when Riverview I and II opened in 1975, large numbers of units were kept vacant, and large numbers of minority applicants kept waiting, while unsuccessful efforts were made to attract whites to the projects. That practice eventually led to a complaint filed by the NAACP and a consent decree altering the rental policies. Although efforts to attract whites continued, Riverview became and remained, predominantly minority. C-1650. In addition, the concentration of subsidized housing in Southwest Yonkers is widely viewed to have seriously hindered, rather than helped, the economic revitalization of the area. See, e.g., Tr. 9773 (Pistone); 7688 (Martinelli).
The City contends, however, that its strategy was both reasonable (if unsuccessful) and unrelated to any racially influenced opposition to the placement of subsidized housing elsewhere. In support of its contention, the City points to the testimony of David Portman, its expert witness on urban planning, and to the existence of the City's Community Renewal Plan, a report issued in June of 1970.
Dr. Portman testified that under then-prevailing planning standards it was reasonable for the City to place relocation housing in or near urban renewal areas and to attempt to use subsidized housing to upgrade the neighborhood and attract commercial and private residential development. Tr. 10,207-10, 10-714-20. Dr. Portman disagreed with the opinion of Paul Davidoff, the government's expert, that the concentration of subsidized housing in the Southwest stigmatized the area (thus discouraging private residential and commercial development), and suggested that in any case, the failure to reinvest would have been perceived as a public abandonment of the Southwest, which would have had an even greater stigmatizing effect. Id.
However, Dr. Portman subsequently acknowledged that avoiding the appearance of abandonment did not require that all subsidized housing be built in the Southwest, Tr. 10,727-28, 10,744, and that it also would have been reasonable to pursue a middle ground -- that is, to put some subsidized housing in the Southwest and some elsewhere. While Dr. Portman declined to express an opinion on whether that alternative would have been preferable, he did acknowledge that as a planner he "probably" would have presented the alternative to the City as something to consider. Id. Dr. Portman also subsequently acknowledged that it would have been preferable if the City's "seed investment" in the Southwest had not been largely limited to subsidized housing, but had included more in the way of arterial widening and other physical improvements. Tr. 10,834-37.
Dr. Portman offered no opinion on whether the City's confinement of all subsidized housing to the Southwest was in fact related to the strong opposition to subsidized housing that was evident in Northwest and East Yonkers. Nor, in light of his concessions about the alternatives available to the City, does his testimony offer any significant support for a conclusion that the two were, in fact, unrelated.
The second item emphasized by the City -- its Community Renewal Plan ("CRP") -- was prepared as part as the City's Community Renewal Program, a federally funded study "to measure the intensity of community problems which affect the quality of life in Yonkers and to set forth a systematic program for their elimination of reduction." C-337 at 26601. Plans for undertaking a Community Renewal Program in Yonkers began in March of 1966, and the following summer YURA Director Walter Webdale hired Patrick Kane and his consulting firm, KRS Associates, to assist in the project. C-325; C-328; Tr. 8677 (Kane). KRS was made responsible for project coordination, the physical planning aspects of the study, and the preparation of the CRP. C-337.
The CRP set forth in general terms a long-range program for the redevelopment of the Southwest and a more specific short-range program for the years 1970 through 1975. The recommendations in the short-range program included the use of federal funds to construct subsidized housing in Southwest Yonkers, and the use of the "checkerboard strategy" to maintain an adequate supply of relocation housing. Id. ; Tr. 8707-08 (Kane).
However, the circumstances of the Plan's preparation undermine its significance as support for the contention that the City's activities during these years were unaffected by racially influenced opposition to the placement of subsidized housing outside Southwest Yonkers. Patrick Kane testified that in formulating the plan he met with City officials and Yonkers residents extensively and learned, inter alia, of the City's urban renewal and subsidized housing history, of the "stalemate" that had been created by the lack of relocation housing, and most significantly, of the concerns that existed in East Yonkers with respect to potential change of the "character" of the neighborhood -- concerns that Kane understood to include the possibility of "racial alterations of the homogeneous composition of the community." Tr. 8680-81, 8689-91, 8709-14, 8734, 8787, 8802-03, 8910 (Kane).
Kane testified that he felt "compelled by law and conscience" to disregard the racially influenced fears of East Yonkers residents. Tr. 8910. However, he also acknowledged that those fears made selection of subsidized housing sites in East Yonkers "all but impossible." Tr. 8803. Kane did not recommend the impossible. Instead, he left the question of the racial homogeneity of East Yonkers to another day, Tr. 8706, 8721-22, and focused instead on Southwest Yonkers. Tr. 8737. As a result, while the CRP may suggest that City officials were not entirely alone in their perception of political realities in Yonkers, it does not suggest that the City's actions with respect to subsidized housing were not based, at least in significant part, upon that perception.
Moreover, it is not apparent from the record that Kane's recommendations carried any significant weight with City officials. While there is evidence showing that Kane was in fact involved in a number of the City's planning activities between 1967 and 1970, the various City officials who testified about site selection for subsidized housing during those years did not suggest that the selections were made in reliance upon Kane's advice. Indeed. Walter Webdale dismissed the entire Community Renewal Program as being of little importance to the City's planning efforts, explaining that "[i]t was formally put together, but there wasn't that much cooperation in the City to make it really function as it was designed to function." Webdale Dep. 381-82; see also GX 1088.28.
In general, the testimony of the City officials who were closely involved with subsidized housing and urban renewal during these years contains little to suggest that the total confinement of subsidized housing to the Southwest was the result of an affirmative plan to use subsidized housing to revitalize the area. Walter Webdale stated flatly that YURA went into the subsidized housing business only because the MHA had failed to provide the necessary relocation housing for the City's urban renewal projects. Webdale Dep. 74-75; 241; 592. And apart from his unsupported suggestion that he was compelled by HUD to limit the agency's housing activities to urban renewal areas, see HOUSING IV.D.1 supra, Webdale's explanation for the confinement of subsidized housing to the Southwest was simply that he believed a "two for one" approach which combined subsidized housing and redevelopment "was the prudent and wise thing to do." Webdale Dep. 244. The respect in which it was "prudent and wise" is suggested by Webdale's further acknowledgement that the public's attitude toward subsidized housing was a "significant barrier" to the City's ability to provide relocation housing, and that he had heard various councilmen say that they wouldn't survive politically if they supported subsidized housing projects in their wards. Webdale Dep. 484-85, 562.
In the same vein, the testimony of Mayor Del Bello conveys primarily an awareness of the urgency of the need for subsidized housing, and of the limitations imposed by community opposition. Although by the time Del Bello took office in January of 1970 there had been some progress made toward removing the relocation "roadblock" to the City's Stage II urban renewal project, the need for subsidized housing as a relocation resource remained acute. In addition to Stage II, the planned clearance for the Otis expansion was estimated to require the relocation of some 1,000 families, and there were other projects in the works as well. Tr. 1326-30 (Del Bello); 835-37 (Yulish). Moreover, as Mayor Del Bello explained, the City "had people living in desperate, horrible conditions," and he contended that "the best thing [they] could do as public officials was to get them in safe, decent standard housing." Tr. 1214-15; see also Tr. 834 (Yulish); 8707 (Kane); Lenaz Dep. 18, 23, 37 (describing "tremendous sense of urgency" communicated by the Del Bello administration to the UDC in early 1970).
Although Del Bello testified that subsidized housing was intended to play a role in the City's redevelopment strategy by stopping the spread of blight in the Southwest, Tr. 1326, he did not suggest that it was for that reason that subsidized housing was confined to the Southwest. To the contrary, as noted earlier, Del Bello acknowledged that the reason sites in the Southwest were the only ones chosen was that "councilmen wouldn't approve sites in any other areas." Tr. 1193.
Also noteworthy, as suggested earlier, is the apparent absence of discussion or debate among City officials about the proper location of relocation housing. Instead, there is only evidence of off-hand remarks which suggest that at least for the time being, discussion was considered unnecessary. At a 1971 CAC meeting, for example, in the course of a discussion about the newly opened Jefferson Terrace, it was suggested that the apparent success of the project be publicized so as to "produce a greater understanding of how the § 236 program works and perhaps help to alleviate some of the opposition to locating these buildings in North and East Yonkers." GX 1079.63. Similarly, at a City Council hearing held that same year, one of the sponsors of Jackson Terrace successfully urged a reluctant City Council to grant the project several variances, arguing that "in light of the announcement of the Federal Authority, in regard to scattered site housing, which, I presume, will tie up this Council for some time in its dilemma, Jackson Terrace may be the only source of housing for some time to come." GX 1082.32; see also GX 1090.5; 1108.3; 1189.1.
Particularly conspicuous is the absence of any formal discussion among City officials or with the public about the selection of sites for the 1,200 units of subsidized housing provided for in the City's first Memorandum of Understanding with the UDC. Nor can that absence be explained by a lack of issues worthy of discussion. To be sure, the agreement offered a massive supply of relocation housing, the need for which few would have disputed. However, there was reason to question whether all of that badly needed relocation housing belonged in and around the downtown area. The agreement added 1,200 subsidized units to more than 500 also in progress for an area that was already considered by the City's Planning Director to be overconcentrated with subsidized housing. GX 1090.5; GX 1093.8; Tr. 2779-82, 2865-70 (Arcaro); 9773 (Pistone). In addition, the Whitney Young site was in an area designed in the Master Plan for industrial re-use and was considered by Planning Director Pistone to be an "excellent" industrial site. Tr. 9822. Had he been consulted about the site, Pistone testified, he would have opposed it on that ground. Id. Similarly, the sites for the Dorado and Frazier Arms were in areas designated for commercial and industrial re-use, and one of the sites had been rejected by HUD a few years earlier on the ground that it was unsuitable for residential use. C-583.
In addition, while at least some City officials may have considered the rejection of wholly commercial re-use for the Stage II urban renewal area long since settled (although Pistone testified he attempted to persuade newly elected Mayor Del Bello to reconsider the issue, Tr. 9877), it is nonetheless peculiar that the decision to abandon previous plans for a half-commercial re-use, and instead double the amount of housing, was made without any apparent formal or public discussion. The only apparent public debate of the decision came several years later in 1972 when members of the Yonkers Economic Development Corporation attempted to prevent construction of the 343-unit Riverview II, proposing instead a commercial "superblock". Cola Dep. 38, 42. By that time, however, the City was either unwilling or unable to reconsider plans for the area.
Equally deserving of discussion was the reasonableness of expecting Riverview to lure middle-income whites back to the Southwest. The City points to the success of Phillipse Towers, the Mitchell-Lama project just across the street from Riverview, as reason for optimism about Riverview's own chances of success. And in fact, Phillipse Towers was, at that time, widely viewed as a well-integrated and well-managed complex, which had exerted a stablizing influence on the neighborhood.
However, the circumstances of Riverview's construction were clearly different. It was to be part of a large infusion of subsidized housing in and around the downtown area (500 privately sponsored units and 1,200 UDC-sponsored units), and a substantial minority tenancy for that subsidized housing was virtually certain. See, e.g., Webdale Dep. 54-55. Indeed, a UDC memorandum prepared along with the draft agreement in April of 1970 described the first round UDC projects as helping to provide relocation housing for the nearly 1,000 black families living in substandard housing in the general area. GX 1088.8. Yet, there is no evidence of any formal or public discussion about the possible effect of these circumstances on Riverview's ability to attract white tenants.
Moreover, Phillipse Towers was a middle-income project while Riverview was, at the time of Council approval, partly low-income and mostly undertermined. The July 1970 Memorandum of Understanding called for a mix of 20% low income, 10% low income elderly, and 70% to be "primarily" middle income with subsequent market studies to determine the percentabe of moderate income and conventional units, GX 1088.12. However, a UDC marketability study completed in April had already determined conventional units to be "completely unmarketable" and middle-income units unmarketable on any significant scale. C-606. Yet, there is no evidence of any discussions among City officials about the wisdom of approving a project without a firmer indication of the type of housing that would be put there, nor evidence of any studies or discussions about the effect of changes in income mix on the likely tenancy. Instead, as noted earlier, the UDC agreement was simply presented to the YURA Board and approved without apparent debate, and approved by the City Council the following day. See HOUSING IV.C.2 supra.
We do not find, as plaintiffs have suggested, that these circumstances indicate that the City had no intention of attempting to attract an integrated tenancy to any of the projects, or that it had no genuine hope (however ill-founded) of successfully doing so. There is credible evidence that efforts were made (apart from the practices that gave rise to the NAACP complaint), and that hope did in fact exist for creating something other than an "unsalvageable ghetto." GX 1978,32; see, e.g., Tr. 10,157-59, 10,182-83, 10,196-97 (Bogdanoff).
However, a policy of excluding minorities from all areas of a city except one cannot be justified by attempts to encourage integration in the remaining area, see, e.g., Gautreaux v. Chicago Housing Authority, supra, 296 F. Supp. at 914, and it is clear that the City's actions with respect to subsidized housing during these years were motivated, at least in part, by such a policy. The circumstances under which the City acted, taken together with the testimony of its own former officials, permit little doubt that the role which subsidized housing came to play in Southwest Yonkers during these years was, in significant part, the result of perceived necessity -- due to racially influenced community opposition the the placement of the housing elsewhere -- rather than nondiscriminatory design.
Our conclusion in this regard is reinforced by the circumstances leading up to the City's approval of the RAMP site in order to satisfy HUDS's requirement that a "scattered" housing site be approved. On the record before us, the selection of the RAMP site cannot persuasively be explained as part of a strategy to rebuild the Southwest, nor as the result of the unavailability of East side sites, but only as an indication of the extreme degree to which community support (and therefore City Council support) was lacking for the placement of housing equated with minorities in East Yonkers.
V. THE CITY'S ACTIVITIES UNDER THE HOUSING AND COMMUNITY DEVELOPMENT ACT OF 1974
In the years following the Riverview period, in response to continuing federal pressure, the City's planners made several attempts to promote at least some dispersion of subsidized housing in Yonkers. The discriminatory pattern of previous years continued, however, and at virtually every turn, their efforts were opposed by the City Council. The result has been the continued concentration of all subsidized housing for families, and virtually all subsidized housing for senior citizens, in Southwest Yonkers.
A. Subsidized Housing Under the Housing and Community Development Act of 1974
With the enactment of the Housing and Community Development Act of 1974 (HCDA), the major federal urban renewal programs were replaced by the Community Development Block Grant (CDBG) program, under which a community may apply for annual block grants to be used for community development activities such as slum clearance and infrastructure improvement. Among the requirements for CDBG eligibility is the development and approval by HUD of a Housing Assistance Plan (HAP) for the community. The HAP surveys the housing conditions in the community; describes the housing needs of lower income households, and specifies the type and location of housing assistance to be provided. One of the goals of the HCDA is to promote dispersal of subsidized housing opportunities (particularly for minorities), and one of the criteria by which a HAP is judged is the extent to which it furthers that goal. See, e.g., Tr. 9802, 9934-35 (Pistone); 10,465-66 (Yost); 6335-36 (Diamond). A grantee's performance under the CDBG program is measured, in part, by the efforts made toward providing the housing assistance specified in the HAP.
The primary program for housing assistance under the HCDA is the Section 8 Program, under which rental subsidies are paid to a landlord on behalf of eligible tenants. The Section 8 program is subdivided into several categories: new construction, substantial rehabilitation, moderate rehabilitation, and existing housing. Under the new construction and rehabilitation programs, development proposals are made directly to HUD in response to the publication of a Notice of Funding Availability (NOFA). The local government is then invited to review the proposal for consistency with its HAP and to offer any other comments it may have. The review is generally known as a § 213(a) review (a reference to the provision of the HCDA which requires it).
Under the Section 8 Existing Program, a local housing agency applies to HUD (again in response to a NOFA) for a certain number of Section 8 Existing Certificates for distribution to eligible families or individuals. Certificate holders can then use the certificates to obtain an apartment from a landlord willing to accept the certificate in lieu of a designated portion of the rent, which is then paid by the local housing authority on behalf of the certificate holder.
B. The Section 8 Existing Program
In March of 1975, the City submitted its first Housing Assistance Plan (HAP). C-1086. The Year I (1975-76) HAP identified -- as would all subsequent HAPs in evidence -- significant needs for subsidized housing among both the senior citizen and family populations in Yonkers. Id.; C-1087 through C-1091. The basic strategy proposed in the Year I HAP to work toward meeting those needs was new construction of subsidized housing for senior citizens in East Yonkers; rehabilitation of existing structures for families primarily in Southwest Yonkers; and the use of Section 8 Existing Certificates by both families and senior citizens. C-1086. With respect to the lattermost, the Year I HAP called for the City to apply for 100 Section 8 Existing Certificates to be split equally among senior citizens and families.
As City officials acknowledged at trial, the fifty Section 8 Existing Certificates represented the sole aspect of the Year I HAP that offered any significant chance of dispersing at least some subsidized housing for families into the overwhelmingly white neighborhoods of East and Northwest Yonkers. Tr. 10,430-36 (Yost); 7348 (Yodice). It was also one of the first aspects of the HAP to be rejected by the City Council. That rejection, together with the City's subsequent actions with respect to the Section 8 Existing Program, provide what may be the single most persuasive indication of the degree to which segregative intent has figured in the City's subsidized housing activities.
In August of 1975, in response to word from HUD that 100 Section 8 Certificates had been set aside for Yonkers, City Manager J. Emmet Casey submitted the City's appliction for the certificates. GX 1164. Several weeks later, on September 2, 1975, Casey sent a memorandum to the Mayor and the City Council requesting official authorization for the City to participate in the program, and urging the Council to act expeditiously so that HUD would not reallocate the certificates to another community. GX 1104.7. (The Mayor was now Angelo Martinelli, who had defeated Mayor Del Bello in the 1973 election, and who had campaigned as an opponent of any additional construction of subsidized housing in Yonkers. Tr. 7432-33.)
On September 10, 1975, the City Council met, and on the motion of Councilmember Walsh, referred the matter to committee. GX 1104.9. Alphons Yost, who had succeeded Morton Yulish as the Administrator of DOD, and who also headed the Yonkers Community Development Agency (formerly the Yonkers Urban Renewal Agency), testified at trial that it was apparent to him at the September 10th Council meeting that the Council would not authorize the City's participation in the Section 8 Existing Program. Tr. 10,521-22. Nonetheless, in the City's § 213(a) review submitted the following month, Casey told HUD that the application for fifty senior citizen and 50 family certificates was consistent with the City's HAP and "fully supported by the City administration." GX 1104.10.
On November 14, 1975, HUD notified Casey that the City's Section 8 Existing application had been conditionally approved subject to the receipt within ten days of a resolution by the "governing body of the Agency authorizing participation in the Section 8 program." GX 1104.15. Yost asked the CDA's attorney whether a resolution from the CDA Board would suffice, but was told that it would not. GX 1104.16; 1104.17.
Two months later, on January 21, 1976, Yost reported in a memorandum to City Manager Casey that HUD had told him that unless the City Council passed a resolution authorizing the City's participation in the program on or before the first week of February, the 100 certificates would "in all probability" be reallocated to another community. GX 1104.17. Yost also noted that the "Council [had] been agonizing over this aspect of our Housing Assistance Plan for some time and [had] not come to a conclusion as to their dispositional desires." Id.
On January 27, 1976, the City Council met and voted seven to six against authorizing the City to participate in the Section 8 Existing Program. Mayor Martinelli who attended the meeting and voted against the program, testified that he had no recollection of any discussion that may have preceded the vote. Tr. 7491-96 (Martinelli). Alphons Yost likewise professed to recall little about the Council's position on the issue. Tr. 10,522-32.
Others, however, testified that the Council's opposition was based on the geographic mobility the program would give to those of low and moderate income. City planner Gregory Arcaro, for example, testified that while there was little public discussion of the program, there were numerous informal discussions with City officials, and that he was asked more than once whether it was true that the City would have no control over where the certificates were used. Tr. 2848-57. People would ask, Arcaro explained, whether the certificate holders could in fact "go anywhere," including buildings in East Yonkers. Id. Arcaro testified that he was told by Yost and the City Manager that some councilmembers opposed the program because of its mobility, but that he could recall little specific discussion as to why, "other than what we probably knew in our heads." Tr. 2855-56; see also Tr. 10,325 (Hanney). Herman Keith, a CDA employee who also attended the January 27th meeting, confirmed that the basis of the objections to the program was that the certificate holders could "seek housing anywhere in the City." Tr. 8415-16. Keith also testified that he believed that those who objected to the program were concerned that minorities would move to East Yonkers. Id.
Also in attendance at the January 27th meeting was Winston Ross, then president of the Yonkers Branch of the NAACP, who spoke in favor of the program. Tr. 3833-34. Ross testified that in the discussion preceding the vote, a number of councilmembers stated that they were opposed to the use of Section 8 Existing Certificates for families in their wards, and that at least one opposing councilmember likened the program to scattered site housing. Tr. 3834-36. Five of the six councilmembers who joined Mayor Martinelli in voting against the program represented wards that were totally or partly east of the Saw Mill River Parkway. Tr. 3836; GX 1104.3.
Two days after the vote, Ross sent a letter to each of the councilmembers who had voted against the Section 8 Existing Program urging them to reconsider. GX 1104.3. The letter stated that:
In a time when there is a desperate need for adequate and safe housing for the elderly and low-income families to reject a program that doesn't cost the City of Yonkers and provides some relief for a number of citizens shows an insensitivity to their needs. Section 8 Existing Housing Program would aid families in finding decent housing without affecting the City's tax base through tax abatements as in other subsidized programs. To raise the issue of "scatter site housing" when speaking of 100 units equally split between low-income and elderly Yonkers residents shows a lack of understanding of housing concepts and smacks of racism.
A memorandum sent the same day from Alphons Yost to City Manager Casey (with copies to the Mayor and various councilmembers and other City officials) reported that on the day after the Council vote, Yost told Jed Abrams, a HUD official, that he "was having difficulty in getting the administration to go along with" the Section 8 Existing Program as outlined in the Year I HAP. GX 1104.19. Yost told Abrams that since the HAP "placed heavy emphasis on senior citizen domiciles through new construction and since no new construction has been started under Section 8, due to a lack of mortgage monies, we felt that we must therefore change the specified needs" to 100 Section 8 Existing Certificates for senior citizens. Id.
Yost reported that Abrams' initial reaction was that the change "might require a major revision to the plan necessitating a long term reviewing process," but that after consultation with his superiors, Abrams suggested an "alternate solution." Yost's memorandum stated that:
The alternate solution suggested was one in which the City would request, through Council resolution, that the 100 units for existing housing in the first year's application be allocated to senior citizens only and with a back-off alternative being that the 50 units presently specified in the HAP for senior citizens be authorized with no action to be taken on the 50 units earmarked for families.
Yost observed that "with these conditions the councilmatic objections should be somewhat abated," and urged that since the issue "turned into a major discussion item" at the last Council meeting, a committee meeting be held "as soon as possible." Id.
But despite HUD's apparent willingness to accommodate "councilmatic objections" to the use of the Section 8 Existing Program for families, Yost expressed concern about the possible consequences of the City's actions. The following month, in February of 1976, Yost wrote a memorandum to Deputy City Manager Vincent Castaldo, enclosing a recent national housing newsletter which he described as "clearly indicat[ing] how seriously HUD considers the dictates of the" HCDA and "also reflect[ing] HUD's concern [that] low income housing [not be limited] to sub-standard areas." GX 1104.21. The memorandum then went on to recount the Council's rejection of the Section 8 Existing Program, and warned that "[i]f this matter is not resolved in a way that HUD feels comfortable with we would be putting all subsequent CD monies in jeopardy." Id.
Castaldo distributed copies of Yost's memorandum to Mayor Martinelli and City councilmembers. P-I 171-19. Castaldo's covering memorandum stated simply that:
I am transmitting herewith copy of letter from Department of Development Director, Al Yost, concerning Section 8 Housing and how it may affect the block grant to the Community Development Agency. As soon as we have received final information from HUD, I will advise you further.
By mid-March of 1976, the Council had not taken any further action with respect to the Section 8 Existing Program, nor, apparently, had HUD acted upon a written request by Yost for "HUD's official response" to the City's plan to alter its Section 8 Existing application from fifty senior citizen and fifty family certificates to 100 senior citizen certificates. GX 1104.20. On March 19, 1976, Yost wrote a memorandum to Castaldo (who had since become City Manager) outlining the results of some thinking he had done about the Section 8 Existing Program "and the qualms of certain of the Council relating thereto." GX 1104.23.
Yost's memorandum began by noting that "the Section 8 Existing Program does not require that people be moved from one place to another, so there should be no concern on that score on the part of the Council." Id. That fact, Yost suggested, plus HUD's apparent willingness to convert all the Section 8 Existing Certificates called for in the Year I HAP to certificates for senior citizens "should be sufficient for councilmatic approval." Id.
Noting, however, that the Council "unfortunately" had yet to give that approval, Yost suggested another means of "sweeten[ing] the pot." Id. He suggested that "each councilman be allowed to recommend to the Agency eight worthy individuals in their respective Wards who qualify for the Section 8 Existing Program and the Agency would give those people priority such that each Councilman could get full credit for whatever his involvement turns out to be." Id. "With this kind of a program," Yost concluded, "I feel that even the allocation of fifty family and fifty elderly units becomes viable since the apportionment of each would be made by the councilman involved." Id.
On April 27, 1976, eight months after the City's original application for Section 8 Existing Certificates, the City Council voted none to three to authorize the City to apply for 100 Section 8 Existing Certificates for use by senior citizens. GX 1104.26. On May 12, 1976, HUD notified the City that it would be awarded 50 certificates for senior citizens (the amount originally provided for in the Year I HAP). GX 1104.31.
The City's Year II and Year III applications for the Section 8 Existing Program were likewise limited to certificates for senior citizens.
Not until 1978 did the City apply for any Section 8 Existing Certificates for families. And even when it finally did so, relatively few were put into use, and fewer still put into use outside of Southwest Yonkers. As of February 1982, only thirty-six certificates for families were in use (out of at least 120 awarded to the City), and only three were in use outside of Southwest Yonkers. GX 1225.38.
In addition, not a single certificate held by a minority member (whether family or senior citizen) was in use outside of Southwest Yonkers. Id. All twenty-seven of the minority holders of family certificates lived in Southwest Yonkers, as did all forty-three of the minority holders of certificates for senior citizens. In contrast, twenty-four certificates were in use by whites outside Southwest Yonkers. Id.
The City contends, and indeed has represented to HUD, that it has made significant efforts to encourage landlords in non-minority areas to participate in the Section 8 Existing Program. See, e.g., Tr. 6715-17 (Forman). However, there is no evidence in the record of any significant outreach to East Yonkers landlords.
Fred Stillman, for example, who owned or managed a number of apartment buildings in East Yonkers and who was well known to City officials because of his involvement in the management of Seven Pines and Riverview II, testified that he has never been approached by City officials about possible participation in the Section 8 Existing Program. Stillman Dep. 6-8, 127. In addition, and more significantly, a City official acknowledged at trial that a list of contacts presented to HUD as evidence of the City's efforts to expand the use of the Section 8 Existing program by minorities in non-minority areas consisted of a list of buildings in Southwest Yonkers. Tr. 7391-93 (Yodice); see also Tr. 6715-17 (Forman).
Moreover, the CDA's general record of administering the Section 8 Existing Program was so poor that HUD made repeated efforts from 1979 to 1981 to persuade the City to transfer the program (together with what remained of the Section 23 Leased Housing program) to the MHA, even at one point conditioning an award of Section 8 certificates upon the transfer. GX 1104.70, see also GX 1104.68, GX 1104.72; Tr. 7142-43 (Abrams). Yet, the City strenuously and successfully resisted the transfer, arguing to HUD, inter alia, that the CDA was "more responsive to the elected officials of the City." GX 1125.8, at 32,234; see also GX 1125.4 through GX 1125.7.
City officials were well aware of the possible consequences of failing to comply with HUD's wishes. CDA official Joseph Pacitto warned the City Manager in 1979 that if the transfer was not effected the City was risking the loss of a significant amount of future federal housing assistance, a loss he contended would be tragic and unfortunate. When you consider that there is a waiting list of over 800 people requiring Section 8 Existing Housing assistance, we will be denying these people what they deserve and desperately need.
GX 1125.5. Yet, the City Council defeated the legislation necessary to effect the transfer by a vote of ten to two, GX 1125.7, and even subsequently passed a second resolution affirmatively opposing the transfer. GX 1125.8, at 32,222.
In addition, when the MHA itself applied to HUD in 1981 for 105 Section 8 Existing Certificates (fifty-seven for families; forty-eight for senior citizens), the City strongly objected. GX 1125.9 through GX 1125.13. The City Council passed a resolution declaring that the MHA's authority to provide low-income housing assistance was limited to senior citizens, and in its § 213(a) review of the application, City Manager Fox notified HUD that the City "disapprove[d]" the MHA's appliction based upon the "policy directive" reflected in the City Council's resolution. GX 1125.12.
The City's actions with respect to the Section 8 Existing Program are inexplicable except by reference to the anticipated race of the certificate holders. Throughout the years in question there was a serious (and indeed, in the words of at least one City official, "desperate") need for Section 8 Existing Certificates for families as well as senior citizens. GX 1125.5; see also, e.g., Tr. 10,469-71 (Yost); C-1086 through C-1091. In addition, the certificates were a form of assistance that imposed no financial burden on the City. No tax abatement was required, as in the case of most subsidized housing projects, and included with the grant of the certificates were funds payable to the City for the cost of administering the program. Tr. 2853 (Arcaro). Moreover, like the Section 23 Leased Housing Program, Section 8 Existing Certificates offered a way to disperse low income housing without adding to the density of a neighborhood (as a subsidized housing project might) and without raising any other real or imagined physical planning problems.
Yet, for three years, the City refused entirely to apply for Section 8 Existing Certificates for families; failed to use many of the certificates eventually applied for; failed to make any significant efforts to promote their use outside Southwest Yonkers; sought to conceal from HUD the extremely limited geographic scope of its outreach efforts; resisted efforts by HUD to transfer the program to an agency perceived by the City to be less "responsive to elected City officials"; and opposed the efforts of that agency to obtain certificates on its own.
In pursuing those actions, the City consciously forfeited badly needed federal housing assistance, consciously risked even greater forfeitures of federal assistance, and consciously avoided an opportunity to lessen the severe concentration of subsidized housing and minorities that existed (and exists today) in Southwest Yonkers.
The various attempts the City has made to explain its actions on race-neutral grounds are plainly inadequate and at variance with the record. The City has contended, for example, that the City Council insisted on a Year I application of 100 senior citizen certificates because it had determined the need for senior citizens to be "more compelling." However, there is no evidence that this was the basis of the Council's actions, and considerable evidence to the contrary. Moreover, the City's explanation fails to explain why an application for fifty senior citizen certificates (and none for families) was the acceptable "back-off alternative." GX 1104.19.
Nor can that alternative be explained by a belief among the Council that no need existed for families. There is no evidence that any councilmember held such a belief, and the City's own HAPs as well as the testimony of its planners and other officials make clear that such a need indeed existed. See, e.g., GX 1125.5; C-1086 through C-1091; Tr. 2844-53 (Arcaro); Tr. 10,469-71 (Yost).
Equally unsupported in the record, and equally implausible, is the City's suggestion that the City Council declined to participate in the Section 8 Existing program for families because it "recognized that HUD's rent guidelines were inadequate to attract" landlords of units large enough for families. The testimony and memorandum of HUD's Area Economist Paul Bannett, upon which the City heavily relies, establishes no more than that Bannett told his colleagues at HUD that the City's failure to apply for Section 8 Existing Certificates for families would be entirely indefensible but for the then-current inadequacies in the program's rent schedule. See Tr. 6262 (Bannett); C-1291. Such evidence may explain why HUD did not exert more pressure on the City to apply for the certificates. (Although in that respect it must be evaluated together with HUD's troubling willingness to accommodate "councilmatic qualms" about the mobility which the certificates gave to recipients of housing assistance. See GX 1104.19.) But that evidence in no way suggests that concerns about inadequate rent schedules motivated the City's actions. In addition, it is hard to believe that such a concern would have militated against accepting housing assistance that was readily available and cost-free to the City.
Nor can we accept the City's suggestion that rent schedules alone explain the current distribution of Section 8 Existing certificates in Yonkers. Even if the current concentration of certificates in the Southwest were largely attributable to the greater number of apartments there that are within the program's price range (and on that point the record is unclear), rent schedules do not explain why it is that the only certificates in use outside Southwest Yonkers are held by whites.
When City officials first learned about the Section 8 Existing program, they expressed concern that it would "wrest away" the local control enjoyed under the § 23 leased housing program (in which City officials selected the buildings the tenants would live in). GX 1104.1; see also GX 1104.11. And early consideration was given to the prevention of its use in East Yonkers by "problem families." GX 1176.23. The events described above make abundantly clear that the families who represented a "problem" to the City Council were minority families, and that (at the behest of the City Council) the City initially resisted participation in the program because it gave minority families the potential ability to relocate to East Yonkers. The record also strongly suggests that when it was clear this potential ability could not, in all likelihood, be realized without significant City assistance, the City intentionally withheld the assistance needed to enable the program to serve as a tool for integration, and resisted efforts to transfer the program to an agency that might do otherwise.
Even if no other evidence of discriminatory actions were available with respect to the post-Riverview period, the evidence concerning the Section 8 Existing program alone would be sufficient to satisfy plaintiffs' burden of proving that the pattern and practice of discrimination evident in previous years has continued up to (and indeed past) the filing of the present action. However, the Section 8 Existing program is by no means the only evidence available in this regard.
C. Section 8 New Construction Housing for Senior Citizens
1. The City's Actions
The City's actions with respect to the location of Section 8 new construction housing for senior citizens provide additional evidence that the pattern of previous years continued. Here, too, initial efforts by the City's planners to disperse the housing were opposed by the City Council.
In explaining the designation of East Yonkers for new construction for senior citizens, the Year I (1975) HAP noted that 97% of the City's subsidized housing was located in Southwest Yonkers, and that choosing East side sites would "minimize relocation, and offer greater selectivity in housing accommodations." C-1086 at 25,053. The HAP also stated that:
West Yonkers locations would be acceptable only if very favorable design, locational and neighborhood impact considerations could be demonstrated. Developers must be aware that solicitation for Section 8 subsidized new construction outside the East Yonkers areas must have the most compelling of design, locational and neighborhood arguments in order to be placed into consideration.
Id. (emphasis in original).
Three months after the Year I HAP was submitted, however, the City Council passed a resolution purporting to amend the HAP to specifically include a proposed site on Highland Avenue in Southwest Yonkers, and directing that the resolution be forwarded to HUD. GX 1112.5; 1112.9. When HUD nonetheless appeared reluctant to process the proposal, DOD Director Alphons Yost sent HUD another copy of the Council resolution "to reaffirm the intention of the City Council to recommend that [the Highland Avenue site] be approved. " GX 1112.10. Yost's letter also "reminded" HUD that the City's Year I HAP "allows for Section 8 developments in unspecified areas of West Yonkers" but omitted to mention that the HAP also stated that such sites were to be considered only upon "the most compelling of design, locational and neighborhood arguments." C-1086. Yost sent a copy of the letter to the would-be developer of the Highland Avenue site, stating that the City would immediately initiate and process a [formal] amendment to the Year I HAP and "guarantee[ing] that the Year II HAP would 'specifically include' the Highland Avenue site," as indeed it did. GX 1112.11; C-1087.
The City's strong support of the Highland Avenue site was by no means a response to "the most compelling of design locational and neighborhood arguments" in its favor. When the developer first approached DOD Director Yost with his proposal, Yost discouraged him, explaining that it was DOD's goal to disperse subsidized housing through East Yonkers. GX 1112.1. Yost simultaneously conceded, however, that DOD "had a long way to go before that became the City policy," id., and the developer (thus alerted) successfully appealed to Mayor Martinelli for support. See, e.g., GX 1112.1; 1112.5; 1112.11. The subsequent support came despite a highly negative review of the proposal by the City's planners, see GX 1112.3, and the site's inclusion in the Year II HAP was, according to an internal City memorandum written by Yost, "dictated by [the] City Council. GX 1190.10.
Nor was the City Council's influence limited just to the addition of the Highland Avenue site. In that same memorandum, Yost observed that "[s]ince we seem to be lacking in support for senior citizen's developments in East Yonkers, I believe a review of other appropriate sites in West Yonkers would be appropriate." Id. Accordingly, the Year II (1976-77) HAP listed four acceptable Southwest sites and deleted the language requiring the "most compelling of arguments" before a Southwest site would be considered. C-1087. The unsurprising result has been that all of the Section 8 new construction projects for senior citizens that were built during this period (including several projects strongly criticized by the City's planner) are in Southwest Yonkers.
The history of Midland Mews, a proposal rejected by the City in 1975, suggests the extreme degree to which support was in fact lacking for east side sites, and also confirms that (as in previous years) race was a factor in that lack of support.
The Midland Mews proposal, which would have provided some forty units of housing for senior citizens on Midland Avenue in East Yonkers, was presented to the City at a meeting between the developer, the architect, and City planning officials in January of 1975. GX 1113.1. In a memorandum to the files written several days later, Lawrence Blumenthal, Deputy Development Planning Director, noted that the proposal had been well received by City planning officials:
The housing ... is properly scaled in its juxtaposition next to single family homes. It makes a fine transition from a S-50 [single-family] to a B [business] zone. The building will require minor variances for parking -- to allow ten percent parking as is customary for the Elderly rather than 150 percent as required, and a reduction in the allowable square feet per unit. Pistone believes these requests are justified. The Planning Branch [of DOD] and the Planning Bureau [headed by Pistone] agree that the site is well suited for housing for the Elderly vis-a-vis public transportation, shopping, recreation, etc. as well as its location in the eastern half of the city.
Despite the views of the City's planners, however, the Zoning Board of Appeals twice denied the necessary parking variance at meetings attended by area residents who spoke against the project.
Most of the objections raised had little to do with the number of off-street parking places provided for in the proposal. At the first session in June of 1975, when the issue finally came up for discussion at 1:00 A.M., area residents made clear that they were opposed to the entire idea of the project. GX 1113.4; GX 1197.2. One neighborhood spokesman contended, for example, that the project was simply "incongruous with the character of the neighborhood, like wearing a high hat and turtle-neck sweater at a formal ball." GX 1197.2, at 53. He also contended that traffic congestion was inevitable, claiming that while a bus line was nearby, every one in a low-income area "has some kind of jalopie." Id. at 415; see also 463-68. Another spokesman raised what the City's planners have referred to as the standard litany of inadequacies (proximity to shopping, churches, etc.), id. at 463-66, which, judging from the planners' memo on the proposal, had little or no basis in fact. GX 1113.1; see also Tr. 2805-08 (Arcaro).
Comments at the second Zoning Board session similarly suggested concern with the effect of putting "low income" housing (even for senior citizens) in the area. One spokesman from the earlier meeting returned and contended that the housing would become a "tenement" and create "the seeds of a ghetto," and even predicted that "Ashburton Avenue [a heavily black area of the Southwest] will probably move up there en masse." GX 1197.3 at 568-69. Another speaker protested as a "witness for the last few years [of] what has been happening in the areas of Yonkers where the houses are being deteriorated, [and where there is] more crime." Id. at 584. Another also referred to Ashburton Avenue and declared that the developer wanted to "build another slum." Id. at 585; see also id. at 590. The area's ward councilman also attended the meeting but declined an invitation to speak, saying that the Corporation Counsel had advised him the variance would have to be passed by the City Council as well, and that he would then "have the opportunity to protect [his] constitutents through [his] choice on the Council." Id. at 592.
One possible explanation for the stated concerns that "Ashburton Avenue" would move to the project may be found in the fair housing statement which the developer filed with HUD, in which he indicated that he hoped to attain a 20% minority representation in the project by attracting "[e]lderly blacks and Puerto Ricans who are now located in west Yonkers." GX 1113.2. In addition, planner Gregory Arcaro testified that concern was expressed at the Zoning Board hearing that the housing might be converted into housing for families. Tr. 2808.
In any event, the opposition of City officials likewise appears to have had little to do with planning considerations. The type of parking variance sought, but twice refused for the project, had been and would continue to be routinely granted for senior citizen projects in the Southwest. See, e.g., Tr. 2951-52 (Arcaro) (citing St. Casimir's, Father Finian Sullivan Towers, Lane Hill, and Monastery Manor as examples). Moreover, the City's planners and (at least with respect to the second variance application) the City's traffic engineer believed the number of parking spaces provided for by the plan was adequate. GX 1113.1; GX 1113.5; Tr. 2951-52 (Arcaro).
Significantly, the number of parking spaces provided by the plan was not even mentioned by the City in its § 213(a) review of the proposal. GX 1113.8. Instead, the City criticized the project on the ground that it lacked nearby shopping, was adjacent to single family homes, was of an inappropriate scale and height, and was "undesirable" for senior citizens because of an "unsightly car lot" nearby. Id. The City's characterization of the proposal thus is directly inconsistent with the conclusions of the City's planners as reported in Blumenthal's January memo. Compare GX 1113.1 with GX 1113.8.
Nor is there any evidence that the planners had reconsidered their earlier views. Instead, there is simply a memorandum from DOD Director Alphons Yost to planner Gregory Arcaro, written shortly after the second Zoning Board meeting, directing him to "set up whatever meetings you feel are appropriate to establish the City's position against this particular proposal." GX 1113.7 (emphasis added). At trial, Yost contended that the City had not become predisposed against the project, but could offer no other explanation for the directive contained in his memorandum. Tr. 10,427-28 (Yost).
2. The Effect of the City's Actions.
The City has argued that under the procedures for funding Section 8 new construction proposals, the final decision with respect to the proposals was, in any case, HUD's. In this regard, the City notes that its negative § 213(a) review for Midland Mews was not binding upon HUD, and that HUD was therefore free to fund the project despite the City's objections, but independently chose not to. Similarly, the City points out that its positive reviews for each of the various Southwest proposals submitted to HUD did not require HUD to fund those projects. In essence, the City argues that its actions were inconsequential.
The argument is unpersuasive for several reasons. First, it unreasonably assumes that the City's review had little or no effect on HUD's funding decisions. Since the very purpose of the statutorily required review is to allow local input in the decisionmaking process, it is, as a general matter, unlikely that local opposition to a project would carry little weight. See, e.g., GX 1112.22. Moreover, as the City itself has emphasized, Section 8 funds were scarce, and the competition for them keen. Thus, if two or more proposals were competing for the same pool of funds (as was the case with respect to Midland Mews and the Lane Hill Apartments, a Southwest project supported by the City), it is especially unlikely that the City's support of one and opposition to the other would be inconsequential.
In addition, the argument ignores the potential effect of a City's willingness to lobby for a particular proposal. In this regard, it is particularly noteworthy that two of the Southwest projects constructed during this period were initially turned down by HUD either for lack of funds or on substantive grounds, but continued to be strongly supported by the City and were eventually approved and funded by HUD. See, e.g., C-1196, C-1197, C-1206 (Monastery Manor); P-I 134-14, 134-74, 134-104 (St. Casimir's). There is no reason to believe that if Midland Mews had been similarly supported, it nonetheless would have failed to receive funding.
Finally, the City's argument ignores the effect of its actions on the likelihood that other developers would come forward with east side proposals in the future. Midland Mews was supported by the City planners; required only a parking variance that had been, and would continue to be, granted to Southwest projects; and was fully consistent with the Year I HAP's stated goal of constructing subsidized housing for senior citizens in East Yonkers. Yet, it was rejected by City officials after area residents had made their strong and racially influenced opposition to the project known. Although the City's negative § 213(a) review of Midland Mews sought to assure HUD that it would support a more suitable proposal, GX 1113.8, the City's actions surely made it more likely that few, if any, other proposals for east side projects would be forthcoming. Cf. HOUSING IV.D.2 supra.
D. Subsidized Housing for Families Under the HAPs for Years I Through IV
The third basic element of the City's Year I (1975-76) HAP (in addition to the Section 8 Existing Program and new construction of subsidized housing for senior citizens) called for meeting the subsidized housing needs of families through the rehabilitation of existing structures in Southwest Yonkers; no goal for new construction was designated. That approach was repeated in each of the City's next three HAPs as well. C-1087 through C-1089.
Although no explanation is offered in the HAPs for the decision to limit new construction to the construction of subsidized housing for senior citizens, the City has offered a number of reasons in support of that decision. First, the City suggests that the decision to meet family housing needs through rehabilitation was consistent both with the purposes of the HCDA (which encourages rehabilitation of existing structures) and with its own efforts to rebuild Southwest Yonkers. In addition, the economics of housing construction are said to militate in favor of new construction for senior citizen housing and rehabilitation of existing structures for families.
Finally, the City contends that both its own planners and HUD's Area Economist Paul Bannett determined that in view of the large number of family housing units constructed in the preceding years, and the large number of vacancies in those units, new construction of subsidized housing for families was ill-advised.
With respect to the lattermost point, however, Bannett testified that he was unaware that the vacancies in question were being artifically maintained in an effort to attract white tenants. Tr. 6091-96, 6120-21; see HOUSING IV.D.5 supra. Moreover, former City Planner Gregory Arcaro testified without contradiction that none of the City's planners construed those vacancies as a sign that there was an oversupply of family housing units on the market. Tr. 3140-43 (Arcaro). In addition, each of the City's HAPs for the years in question indeed shows a significant need for housing assistance for families in Yonkers. C-1086 through C-1089. Thus, to the extent the City is suggesting that a lack of need led to the lack of new construction for families, we find the argument unpersuasive.
None of the remaining reasons cited by the City for its decision to focus on rehabilitation instead of new construction, or a combination of the two, is implausible. However, those reasons leave the picture somewhat incomplete. As an initial matter, it is clear that in light of the extreme concentration of subsidized housing in Southwest Yonkers, and the heavily minority occupancy of that housing, any additional construction of new subsidized housing in Southwest Yonkers was precluded. Only rehabilitation could be limited to the Southwest. C-1086; see also HOUSING V.C.5 supra. Thus, the alternative facing the City was not simply a choice between new construction or rehabilitation but also one between Southwest and East Yonkers as the location for future subsidized housing for families.
In addition, although one major goal of the HCDA is indeed, as the City notes, to encourage rehabilitation of existing structures, another is to encourage dispersal of housing opportunities for minorities. See HOUSING V.A. supra. The strategy adopted in the City's HAP did little to further that latter goal, and it did even less once the Section 8 Existing Program for families had been deleted. Indeed, no other housing strategy could have been significantly more segregative.
Especially in light of the City's past practice of discrimination in the selection of sites for subsidized housing, it seems unlikely that this effect was unintended. In addition, there are two other factors which further suggest that it was not. First, there is credible evidence that those who developed the Year I HAP believed that the City Council would be unwilling to support the placement of subsidized housing for families in East Yonkers, and thus chose senior citizen housing as the vehicle for addressing HUD's concern that the City promote the dispersal of subsidized housing opportunities. See, e.g., Tr. 2845-46, 2855-58, 3133-38 (Arcaro); GX 1112.4; see also Tr. 10,447-48 (Yost).
In addition, the subsequent fate of the Section 8 Existing Program and of the HAP's stated preference for east side sites for new senior citizen housing suggests that the belief was well-founded. Indeed, in light of the City Council's demonstrated lack of support for subsidized housing in East Yonkers, even when limited to senior citizens, and its opposition to participation in the Section 8 Existing Program for families, we find it virtually impossible to conclude that the City's four-year long failure to support new construction of subsidized housing for families was entirely race-neutral. Instead, that failure seems clearly to be a continuation of the City's longstanding practice of excluding subsidized housing from East Yonkers based, at least in part, upon the race of the anticipated occupants.
E. The Palmer Road Site
In 1979, for the first time since the approval of the Curran Court in 1963, the City Council approved a site for subsidized housing that is east of the Saw Mill River Parkway. Like Curran Court, the site approved on Palmer Road between Millard and Ellison Avenues was for some 45 units of senior citizen housing. The project was not a Section 8 new construction proposal. (Despite four years of listing East Yonkers as an appropriate area for Section 8 new construction for senior citizens, the City still had yet to support an east side proposal.) Instead, the Palmer Road site was proposed, along with a site on Willow Street in Southwest Yonkers, by the MHA for public housing for senior citizens. Both sites were approved by the City Council in the summer of 1979. GX 1118.34; GX 1118.45.
The site selection efforts that culminated in the approval of the Palmer Road and Willow Street sites began in December of 1978. In response to a sizable waiting list for Curran Court, the MHA resolved to look into the possibility of building additional public housing for senior citizens, noting however, that an obstacle to doing so was the difficulty of finding "a site in the eastern section of [the] City that would meet the approval of the local legialative body." GX 1118.2.
In March of the following year, the Board of the MHA approved an application to HUD for the reservation of 100 units of public housing. GX 1118.3. The City Council approved the application on the condition that it be limited to public housing for senior citizens, and also approved a Contract of Cooperation with the MHA that was likewise limited to senior citizen housing. GX 1118.5; 1125.2; 1227. The MHA submitted the application to HUD, indicating that no sites had yet been selected but that they would be outside existing areas of minority concentration. GX 1118.7.
The following month, in April of 1979, the MHA approved three sites for the 100 units of housing. GX 1118.8. Two of the sites -- Palmer Road and Boyd Place at Bronxville Road in Northwest Yonkers -- were approved unanimously. Id. The third site -- Willow Street in Southwest Yonkers -- was approved by a vote of four to three, with its opponents contending that the area was already "oversaturated" with subsidized housing for senior citizens. Id.; GX 1118.12. Shortly after the Boyd Place site was approved, however, the owner placed lumber on the site, and applied for building permits to construct single-family homes. GX 1118.18; 1118.20; 1118.17. Upon learning of the issuance of the permits, the MHA withdrew the site. Id.
On May 1, 1979, the Planning Board held a hearing to consider the Willow Street and Palmer Road sites. No opposition was voiced to the Willow Street site, and it was approved unanimously. GX 1118.18. The Palmer Road site, however, proved more controversial. During a lengthy, and at times heated, discussion between area residents and City officials, objections were raised with respect to the inadequacy of parking in the area, the site's distance from shopping facilities, and its location in a floodplain. Area residents insisted they were not "anti-senior-citizen" or (as Emmett Burke of the MHA suggested) "anti-public-housing", but simply conerned about the suitability of the site. Id. The Planning Board voted unanimously to defer action on the site.
Several days later, in a letter to the President of the Longvale Homeowners Association, who had spoken against the project at the Planning Board hearing, the Reverend E. Roy Burchell of the West Center Church in nearby Bronxville acknowledged the "risk" that the project might cause "the complexion of [the] community to change somewhat" by bringing in outsiders, but nonetheless urged support for the project. GX 1118.23. A copy of his letter was sent to the Planning Board. Id. On May 14, the Planning Board voted four to one to approve the site. GX 1118.26.
On June 12, the City Council approved the site as well (together with the Willow Street site), but not without a long and heated public hearing. GX 1118.32; 1118.34. Speaking in favor of the site, Emmett Burke of the MHA called upon the City Council to break down "the invisible wall between east and west Yonkers," and argued that HUD wanted senior citizen housing to be built throughout the City and would no longer agree to building only in West Yonkers. GX 1118.32. Numerous senior citizens spoke in favor the site as well. However, numerous East Yonkers homeowners, and ward councilman John Hanney, spoke against the site, arguing that there had been an absence of community imput in selecting the site and that other sites were available. Burke replied that other sites, including some suggested by Hanney, had in fact been considered, but that Hanney had "played games" with sites, "withdrawing them as fast as [he] suggested them." Id. Several hours after the session had opened, the Council voted nine to three, with one abstention, to approve the site. All three opposing votes, as well as the abstention came from east side councilmembers. Id.
Within a week of the Council's vote, however, the owners of the Palmer Road site filed suit to challenge the legality of the Planning Board approval, contending that insufficient public notice had been given. Upon the advice of the City's lawyers, the Planning Board scheduled another hearing. GX 1118.35; 1118.39.
On the day of the hearing, some seventy East Yonkers residents appeared to speak against the Palmer Road site. The residents contended that the site was unsuitable for senior citizens because of its distance from shopping and other facilities; because of the limited availability of public transportation; and because the neighborhood was noisy and unsafe. GX 1118.39; 1118.41.
Past and present MHA Board members in attendance at the meeting made clear they considered the objections pretextual. One noted that "no one ever asked about transportation for the senior citizens as long as we were building in a neighborhood that they didn't live in," and suggested that there was an "unspoken concern" that minorities would move into the project. Id. Another said the "heart of [the] opposition" is simply that the residents don't want public housing in their neighborhood. Id. Another characterized the objections as the sort of "lame excuses" always raised to subsidized housing. Id. One opponent explained in reply that they were "not uncompassionate people" or "aristocratic snobs," but were "just suggesting that there are alternative sites in the area that should be considered." Id. The Planning Board deferred action on both the Palmer Road and Willow Street sites -- the latter at the request of MHA Chairman Emmett Burke, who contended that HUD was not likely to approve Willow Street unless Palmer Road was offered as well. Id.
A second Planning Board hearing was held the following week, at which time the Board voted to approve the Palmer Road site. A City Council hearing and re-approval followed several days later. GX 1118.42-1118.44; 1118.48. These hearings, as well, were marked by long and heated debate about the Palmer Road site. Id. The issue of race, alluded to in previous hearings, arose again as Antonio Lombardi, Chairman of the Housing Committee of the Yonkers NAACP, urged the approval of Palmer Road and other sites in East Yonkers. GX 1118.42. Lombardi contended that scattered site housing was "long past due," and suggested that the past failures to approve scattered sites reflected "a concerted effort to create segregated neighborhoods" in Yonkers. Id. William Gibson expressed a similar view, recounting his experiences as a member of the UDC-CAC when efforts were being made to find scattered sites for UDC Projects. "Racism and ignorance are still alive," Gibson declared, "sites have been offered and withdrawn ... offered, then withdrawn, and we are still playing the same game." Id.
Meanwhile, area residents continued to offer various and even (as Emmett Burke observed) contradictory objections to the site. Palmer Road was declared unsuitable by some because of its location in a floodplain, and by others (including the owner of the site and ward councilman Hanney) because of its value as a "prime building site." GX 1118.43; 1118.48. Nor did the opposition end with the Council's reapproval of the site. The owner subsequently attempted to obtain building permits for a 50-unit private development, GX 1118.50, and the Longvale Homeowners Association as well as a number of individual residents maintained a steady correspondence with HUD, protesting various aspects of the approval process and challenging the merits of the site itself. See generally GX 1118.
Others, however, wrote to HUD in support of the proposal, contending that the concentration of subsidized housing in Southwest Yonkers represented "racial and economic segregation ... practiced ... by the city with the aid of the federal government." GX 1118.83; 1118.85; 1118.89; 1118.99. The City Manager likewise wrote to HUD in support of the project, asking that it receive the "highest priority" for processing. GX 1118.71.
In one letter, Emmett Burke explained that "fear of public housing" had provoked opposition to Palmer Road, as it had in the past with respect to many other East Yonkers sites, and he urged HUD to assist the City "in crushing the wall that keeps public housing out of the east section" of Yonkers. GX 1118.57. In another letter written several months later, urging HUD to approve a particular method of construction for Palmer Road, Burke reported that:
The Justice Dept. has made a public issue of the concentration of public housing in the West section of our City. This action has made segregation an open and serious problem. This problem has existed for some years and is now a
public issue. The minorities are keeping a close watch on developments on the Palmer site, and confer with us regularly.
GX 1118.115. As of the end of trial, the Palmer Road project was under construction.
The City places considerable emphasis on the approval of the Palmer Road site, contending that it proves that it was not impossible to obtain City Council approval of an East Yonkers site for subsidized housing, and that sites could be approved despite the opposition of the councilman for the ward in which the site was located.
However, the circumstances surrounding the approval of Palmer Road scarcely negate the existence of a pattern established over the course of thirty years of site selection. Nor, for several reasons, can the approval of Palmer Road be viewed either as a complete or a permanent departure from that pattern. First, in light of the proposal's status as senior citizen housing, and the evidence showing a continued pattern of discriminatory actions with respect to the Section 8 Existing Program, see HOUSING V.B supra, the approval of Palmer Road cannot be viewed as evidencing an abandonment of the pattern of racially influenced opposition to the placement of subsidized housing for families in East Yonkers. In addition, subsequent events make clear that the pattern was not, in fact, abandoned.
F. Actions Subsequent to the 1980 Contract Conditions
The activity of the Justice Department mentioned in Emmett Burke's letter of August, 1980 referred to indications that a lawsuit was being contemplated against the City of Yonkers, and to the Department's involvement in HUD's decision in June of 1980 to impose conditions upon the City's receipt of its Year VI CDBG funds. The most significant of those conditions required the City "to take all actions within its control to provide for the construction of 100 newly created units" of subsidized housing for families "located outside of areas of minority concentration." GX 1140.1. The number of units represented the goal which was designated in the City's Year V HAP (the first such goal designated by the City) and which the City had made no progress toward implementing.
In the two years following the imposition of the 1980 contract conditions, the City Council failed to support a single site for subsidized housing for families. One site actively supported by the City's planners was strongly lobbied against by newly elected Mayor Gerald Loehr and opposed by the City Council. In addition, with respect to two other sites designated as likely sites for subsidized housing, actions having the effect of rendering the sites unavailable for subsidized housing were taken or attempted by the City Council. And at least with respect to one of the sites, that effect was clearly intended.
1. Salisbury Gardens
In May of 1980, a proposal was submitted to HUD for the development of Salisbury Gardens, a Section 8 new construction project on Salisbury Road and Sadore Lane in East Yonkers. GX 1132.4. As originally proposed, the project was to consist of eighty units for senior citizens and twenty units for families; the planned number of family units was increased to forty-two in July. GX 1132.8.
The site was in a census tract specifically designated for new construction in the City's current HAP, and properly zoned for the project. GX 1132.4; 1132.8; C-1090. In addition, since the site was owned by the proposed developer, and since the developer planned to perform some of the contracting work himself, no tax abatement was required in order to make the project financially feasible. Tr. 1600 (Walsh). Moreover, as the developer's attorney pointed out to City officials, the project could be offered in partial satisfaction of the newly imposed 1980 contract conditions. Tr. 1628-29 (Walsh).
The initial reaction from City officials was highly positive. The City Manager Engene Fox advised HUD by letter in July that the City "endorse[d] and support[ed] the proposal, and urged "expeditions approval" of the project, noting that it was in conformity with the City's HAP; that the proposed developer had "excellent reputation"; and that the project could be developed "'as of right' without any further City approvals." GX 1132.7.
Less than a week after Fox's letter was mailed, however, HUD's Housing Division received a telephone call from a "very upset" Edward Fagan, the councilman for the ward in which the site for Salisbury Gardens was located. GX 1132.12. Fagan told HUD that the project was "in the backyard of the local democratic leader" and "next to a large and well-organized apartment building," and he asked HUD to send him a copy of the proposal, saying that he felt he would have difficulty obtaining it through the City Manager's office. Id.
Over the next six weeks, growing opposition to the project was expressed by area residents and City officials, and communicated to HUD. The Northeast Homeowners/Tenants Association, for example, met with Councilman Fagan and sent a letter to HUD registering their "strong objection" to the project. P-I 268-16. Mayor Loehr wrote to HUD as well, contending that the project would "adversely impact the quality of life in this established residential area." GX 1132.23. Loehr also sent a mass mailing to area residents expressing his concern about the "unacceptable burden" the project would impose on the neighborhood. GX 1132.21; 1132.25; 1132.26. Loehr's letter included the name and address of the Area Manager of HUD and urged area residents to "express [their] concerns" to him about Salisbury Gardens. Id.
On September 2, the City Council held a public hearing on the project. The hearing, which was advertized by flyers urging residents to "Be there! ...Show your concern...Stop them now!", was well-attended by area residents who spoke against the project. GX 1132.29; 1228. Various councilmembers spoke strongly against the project as well, frequently eliciting applause and cheers from the audience. GX 1228, at 45-80. Councilman Fagan, for example, declared that:
The people in Sadore Lane don't want good works. They want results. They want to see this application turned down. They want to save their neighborhood. They don't want to flee again.
Id. at 75-76. East side councilmen Nicholas Longo and Michael Cipriani, both strong opponents of putting subsidized housing in East Yonkers, see HOUSING V.F.3 infra, similarly declared that the City Manager "better damn well find a way to tell HUD that we don't want this," id. at 70 (Longo), and urged the Mayor and every councilmember "to support and hear what the constituents of the tenth ward are saying." Id. at 72 (Cipriani). At the close of discussion, a resolution was unanimously adopted stating the City Council's opposition to the project, directing the City Manager to withdraw his letter of support, and direcitng the City Clerk to send a copy of the resolution to HUD. GX 1132.30.
HUD continued to process the project, but a virtual moritorium was placed on Section 8 funding soon after the proposal's submission, and despite extra efforts by some HUD officials to obtain funds for the project, P-I 268-30A, it was not funded.
2. The Neustadter Site
A few months later, the City submitted to HUD, inpartial compliance with the 1980 contract conditions, an inventory of fourteen sites that were outside of areas of minority concentration. GX 1140.9. All fourteen were east of the Saw Mill River Parkway. Most would have required a zoning change in order to be used for subsidized housing. Planning Director Pistone privately expressed the opinion that with the possible exception of a site on Trenchard Street (the School 4 site), there was virtually no chance that the necessary zoning changes would be approved. GX 1132.45; Tr. 1642-44. (Walsh).
HUD reviewed the sites and notified the City in April of 1981 that only three sides "appeared to be free from substantial impediments to the feasible development of housing." GX 1140.23; see also GX 1140.16; 1140.18; 1140.29. The three sites were the School 4 site; the Neustadter site at McLean and Central Park Avenues; and 1919 Central Park Avenue. HUD asked the City to provide within thirty days a description of the steps necessary to make the sites available for subsidized housing. GX 1140.23. That same month, the City Council voted to approve the City's Year VII CDBG application, but only after the deletion of any expressions of intent to promote the placement of subsidized housing in East Yonkers. See GX 1229, at 85-128.
In May of 1981, the City replied to HUD's inquiry, saying that with respect to the Neustadter site, a petition was at present before the City Council to change the zoning to allow commercial use; that the School 4 site was at present still held by the Board of Education, and that "no schedule [had] been established" for its transfer to the City; and that on November 25, 1980 (three weeks after the list of sites had been sent to HUD), the City Council had rejected a petition to change the zoning of the third site, 1919 Central Park Avenue, to high density residential use, the result of which was that a new zoning petition could not be submitted for consideration except upon a three-quarters vote of the City Council. GX 1140.29.
Shortly after the City's May 1981 letter, the City Council approved the zone change permitting commercial use on the Neustadter site. GX 1140.43. The use of the site had been publicized as presenting a choice between a "shopping center or low-income housing," with ward councilman Cipriani publicly stating that his vote would be guided by his constituents. GX 1117.10. During the same public discussions, Mayor Loehr stated the federal government was pressing the City to develop subsidized housing in East Yonkers, that it could not at present "compel" the City to do so because of existing zoning patterns, but that in view of the litigation pending in court (a reference to the present action, which had been filed in December of 1980) he could not speak for the future. Id. Both Councilman Cipriani and Councilman Longo took credit in a subsequent election campaign for having blocked subsidized housing on the Newstadter site by voting for the Waldbaum's development. Tr. 7801-13 (Longo); GX 1302.10. The following year, beginning in March of 1982, efforts were made to sell School 4 for private development as well.
3. School 4
School 4 was one of seven schools closed by the Board of Education in 1976. See SCHOOLS IV.A.3.b infra. The site was zoned "M" at the time of the school's closing, permitting multi-family residential development, and in an April 1976 memorandum regarding possible re-uses of the closed schools, Planning Director Philip Pistone recommended that the school be converted into apartments. GX 1187.2. However, the Board of Education did not return the school to the City until 1982, and for the intervening six years the school remained vacant, with the cost of its annual upkeep estimated at $40,000 to $50,000. Tr. 7542-43 (Martinelli); see also SCHOOLS V.E.3 infra.
Between 1976 and 1979, several companies expressed interest in the school for commercial re-use. VSP Co., a video software manufacturer, offered $250,000 for the school in 1978, but was encouraged by Mayor Martinelli to purchase School 7 instead, which had been returned to the City soon after its closing in 1976. VSP Co. followed the Mayor's advice and purchased School 7 for $10,000, with the City agreeing to provide $100,000 worth of renovation. Tr. 7516-21, 12,342-43 (Martinelli). Martinelli, who had campaigned strongly against the closing of School 4, testified that he still harbored hopes at the time that the school would be reopened. Tr. 7517-18 (Martinelli).
Then, beginning in the summer of 1979, School 4 began to be discussed as a possible site for subsidized housing. A committee formed by Councilman Hanney to investigate alternative sites for the public housing scheduled for Palmer Road offered School 4 as one possibility, but the suggestion was rejected by Emmett Burke of the MHA on the ground that City Council members had expressed a "preference for private development" of the site. GX 1118.117. Soon thereafter, in September of 1979, Ward Councilman Cipriani and Twelfth Ward Councilman Longo, whose own ward ended a few yards away from School 4, petitioned for a change of zoning for the site from "M" (multi-family) to "T" (two-family houses) -- a petition that was characterized by at least one Planning Board member as intended to "give the community some peace of mind." GX 1170.5. The Planning Board unanimously recommended against the change on the grounds that "multifamily residential" was the best classification for the site, and that any "downzoning" might diminish the potential sale price to the City. P-I 199-31. Nonetheless, the City Council unanimously approved the zoning change. P-I 199-35.
The effect of the change was to require any developer who sought to use the property for a purpose other than two-family homes to apply to the Zoning Board for a variance, or to the Planning Board and City Council for re-zoning. The change had no effect on commercial developers (who would have faced the same course with the original zoning in place), but it did have the effect of preventing an "as of right" development of a multi-family residential building.
In August of 1981, in response to an inquiry from HUD about the specific steps the City was taking to facilitate the development of subsidized housing, the City reported with respect to School 4 that the Board of Education was "somewhat hesitant about relinquishing property under its control while the current litigation is taking place," but that the City was "actively encouraging" the Board to do so "in an effort to allow furture development of rental housing." GX 1140.43. In addition, the City reported that it had recently informed two minority developers of the nationwide set-aside of 1,500 subsidized housing units for minority contractors and "encouraged them to solicit some of these units [for] sites within the City of Yonkers." Id.
In a letter written two weeks earlier, however, to a minority contractor who had responded to the City's announcement, the CDA merely referred the developer to HUD for the necessary information about minority set-asides, and noted that the City had received "preapproval" of three out of fourteen sites submitted to HUD but that one was to be developed by Waldbaum's; another would require a three-quarters vote of the City Council before a zoning change could be considered; and the third was "still in the possession of the Yonkers Board of Education." GX 1140.41. No mention was made of the City's on-going "active encouragement" of the Board to release the site to make it available for subsidized housing.
Indeed, despite the City's representations to HUD that it was actively attempting to effect the expeditions transfer of the school, see, e.g., GX 1140.43, Tr. 8577-80 (Miecuna), the only evidence of such efforts relate to the City's rapid response to a proposal to develop the site with luxury housing.
On March 16, 1982, a representative of a developer wrote to City Manager Sal Prezioso expressing interest in the site. GX 1170.9. Two days later, Prezioso forwarded the correspondence to Superintendent of Schools Joan Raymond, asking for a response at her "earliest convenience." GX 1170.10. Less than a week later, Raymond replied that the matter was before the Board's Facilities Committee and that she had "strongly recommended" that the Board of Education take action. GX 1170.11. In contrast to the minority contractor who was merely advised that School 4 was still under the control of the School Board, the proposed developer of luxury housing was sent a copy of Superintendent Raymond's letter and assured by the City Manager that "[a]s soon as matters are brought to fruition, we shall be in touch with you." GX 1170.14. Three months after the developer had written to City Manager Prezioso (and six years after the school had been closed), School 4 was returned to the City. P-I 199-52.
A few days later, the City Council passed a resolution creating citizen's committees to study and recommend to the City Council the appropriate re-use for Schools 4 and 15 (the latter also an east side school closed in 1976). P-I 199-53. At a community meeting attended by newly re-elected Mayor Martinelli, Ward Councilman Cirpriani appointed the School 4 committee's five members. All five were white and all five lived in the overwhelmingly white neighborhood surrounding School 4. None except Walter Forrester, who was subsequently chosen by the group as chairman, had any prior experience with development or zoning issues. Tr. 7928-29 (Cipriani).
The appointment of a citizen's committee to recommend a re-use for School 4 was, as Mayor Martinelli acknowledged at trial, unprecedented. Tr. 7546 (Martinelli). The procedure had not been used in the past for any of the other closed schools nor, apparently, for any other City-owned property. The only roughly comparable instance in evidence was Mayor Martinelli's subsequent appointment, in the spring of 1983, of a citizen's committee to recommend whether a site in Southwest Yonkers should be sold to the Hudson River Association for use as a community center (with the investment of approximately $650,000 of the City's CDBG funds). There, however, Martinelli deliberately chose committee members who did not live in the immediate area so that the proposal would be evaluated objectively, and four out of five of the committee members chosen lived in East Yonkers. Tr. 7550-52; 12,352-55 (Martinelli). With respect to the School 4 committee, Mayor Martinelli stated simply that Ward Councilman Cipriani had requested that the committee consist of area residents, and that he had acceded to that request. Tr. 7551-52.
The committee was given no criteria by which to evaluate proposals, nor was it advised to contact Planning Director Pistone or any other City official involved with planning or development. Nor did it do so -- despite the inexperience of its members in matters relating to planning and development. Tr. 7555 (Martinelli); 8057 (Forrester). (Nor, in another departure from standard procedure, did the City Council solicit the Planning Board's views before voting on the committee's eventual recommendation. Tr. 9810 (Pistone).
The Committee was not given a list of developers or any assistance in obtaining such a list. Instead, it was told that the City would publicize the committee's existence and arrange for developers to contact it. Tr. 7554 (Martinelli); 8056-57 (Forrester). A press release was issued announcing the existence of the committee, but no other efforts appear to have been made to find potential developers. P-I 199-53; Tr. 7931 (Cipriani).
Shortly after the committee was formed, two developers called to express interest in School 4. One was Melvin Weintraub from Morelite Construction, who proposed to convert the building into condominuims and construct townhouses on the school playground across the street. The other was Leon Lauterbach, who on behalf of his client Dominic Yanni, was the one who originally contacted the City Manager about the site, and who proposed to convert the school into rental units. Tr. 8052-53 (Forrester).
Some two weeks after the committee's formation, a meeting with held with Melvin Weintraub. Weintraub presented a set of renderings of the proposed project, based on blueprints of the school which he had obtained from the City, and indicated that the starting sales price for the condominiums would be $100,000 to $125,000. Tr. 8058-61 (Forrester). According to Forrester, the general reaction of the committee was that "for that kind of price, people would come in that we would like to live in the neighborhood." Tr. 8065. The committee did not discuss a selling price for the school with Weintraub. Forrester testified that the sales price was not the committee's job, that its sole function was to recommend the "best use of the property," and that the sole criterion for determining best use was "the use that would best fit the neighbors." Tr. 8062,8071.
Another developer, Luciano Martirano, also appeared at the meeting with Weintraub, saying that he had heard about the committee and was interested in developing the property with two-family homes. An appointment was made for Martirano to come back and present a proposal, but according to Forrester, he never reappeared and never submitted a proposal. Tr. 8067-69.
Several weeks later, the committee held its second and only other meeting with a prospective developer, at which Leon Lauterbach's client, Dominic Yanni, proposed conversion of School 4 into apartments to rent at approximately $175 per room. Although the City had initially been responsive to Yanni's expression of interest in the site, he had subsequently been unable to obtain blueprints of the school from the City. As a result, his proposal was limited to an oral presentation, without accompanying sketches. Tr. 8069-70 (Forrester).
After Yanni left, the committee discussed the proposals that had been presented. According to Forrester, everyone was in favor of Weintraub's proposal for condominiums, and as a result, Forrester called Yanni the next day and told him he need not go the expense of preparing sketches of his proposal. Forrester also called Ward Councilman Cipriani and reported that the committee had selected a proposal for condominiums. Forrester explained that the committee felt that apartment dwellers might be "transient," whereas condominium owners would have a vested interest in the property and therefore care for it properly. Tr. 8071-74 (Forrester). At trial, Forrester acknowledged that he knew Yanni owned an apartment building next to School 4, and that he had had no particular experience with those apartments that led him to believe that apartments represented a threat to the stability of the neighborhood. Tr. 8076-78.
Later that month, on August 12, a meeting was held for area residents at which the committee gave its recommendation for the re-use of School 4. C-1381. The recommendation was unanimously approved, and the committee was instructed by Ward Councilman Cipriani to file a report with the City Council. Tr. 8075-77 (Forrester).
The committee filed its report, and on September 14, 1982, the City Council passed a resolution authorizing the City Manager to obtain two appraisals of the property. C-1373. On the basis of those appraisals, the City set a minimum sale price of $230,000. C-1376. The City also wrote to HUD in October reporting that it had received "firm commitments of interest" from a developer to build "moderate income condominiums" on the School 4 site and asking for leave to remove the site from the inventory of possible sites for subsidized housing that had been submitted by the "prior administration." C-1374. HUD granted the request, and Councilmen Longo and Cipriani co-sponsored a local law that would permit the sale of School 4, without public bidding, to Morelite Construction (Weintraub's company) for $230,000. A public hearing on the sale was scheduled for December 21, 1982. C-1375; GX 1170.28.
A week before the hearing, Councilmen Longo and Cipriani sent a letter to their constituents reporting that "a problem ha[d] developed" with respect to the proposed sale of School 4. GX 1170.28; Tr. 7784-87 (Longo); 7970-71 (Cipriani). The letter explained that:
in 1980, then City Manger Manager Gene Fox and former Mayor Gerald Loehr recommended the School #4 as a site for subsidized housing.....As a result of the Loehr-Fox action, the NAACP has threatened to stop the city from selling the
property for any use other than low-income housing.
GX 1170.28. The letter then went on to urge residents to attend the upcoming City Council hearing, claiming that at this point, the Council is almost equally
divided between the condominium proposal and the wishes of the NAACP. Your attendance and your opinion will be extremely helpful at the Public Hearing scheduled for 8:00 P.M.
The public hearing held on December 21, was so well-attended that a television monitor was set up to enable the overflow from the Council chamber to watch the proceedings from an adjoining room. The audience was heavily white, and the discussion itself, a videotape of which has been received in evidence, was emotionally charged, with expressions of concern about the effect that subsidized housing would have on the "character" of the neighborhood, and frequent exhortations by councilmembers to heed the "will of the community." GX 1226; see also Oxman Dep. 123-29; Cola Dep. 169-71.
A number of residents, most of whom were black, opposed the sale. Those speakers described the racial segregation that existed in Yonkers, and the events leading up to the submission of the list of sites to HUD. The final speaker, who was white, spoke of how blacks had ruined neighborhoods in the Bronx, claiming that the buildings originally were "in fine shape" but had "deteriorated" when the blacks moved in. The speaker then stated that he supported the condominium proposal because he didn't want the same thing to happen in Yonkers, and closed by saying, "I'm not a good speaker ... but I think you get the idea." The audience responded with an ovation.
During the Council discussion that followed, Ward Councilman Cipriani urged the Council to support the proposal for condominiums, saying that it was a concept that his constituents had adopted, and that he would "follow it as long as [he was] an elected councilman." Cipriani contended that the issue was not one of black versus white, but then went on to claim that he had earlier supported the concept of subsidized housing for the site as long as it was limited to housing senior citizens.
One Councilmember, Katherine Carksy, raised several concerns about the procedure by which the school was being sold. Carsky objected to being asked to approve the sale without having been shown the developer's proposal, and she reminded the Council that it had not long ago passed a resolution requiring public bidding for the sale of City property. In addition, she questioned Longo and Cipriani's estimate that $600,000 in annual tax revenue would be derived from the condominiums (an estimate which Longo and Cipriani acknowledged at trial to have been inflated by a factor of ten, Tr. 7973 (Cipriani); 7788-89 (Longo)), and she noted that the current zoning of the site was inconsistent with the proposed use. Carsky suggested that if the site were first rezoned and then bid on, a higher sales price would be realized by the City.
Councilmember Cipriani replied that it's not a question of dollars ... It's a question of concept, as to what the neighborhood would like to see, just like ... the concept of what your neighborhood near Palmer Road would like to see.
Cipriani's statement was greeted with applause and cheers, following which, he added "we will change that zone when the concept fits the people, not before."
Councilmember Longo stated that the decision to forgo public bidding was a matter of "trust" in the developer, explaining that another developer might get the required zoning change and then change the use of the site. Longo objected to frustrating the will of the community by denying it a developer it trusted and also stated that "many of us are concerned" about not delaying the project.
Four other councilmembers, including Mayor Martinelli, likewise deferred to the "will of the community." Mayor Martinelli said that he supported the condomiuium condominium proposal on the ground that people ought to "have a right ... to decide what happens to" their neighborhood. Councilmembers MacDonald and Jacono agreed that it was important for communities to be permitted to decide how sites would be used, and Councilmember Spreckman stated that she was there "as a representative of the people, to see that the people get what they want." Spreckman indicated that she supported public bidding as a general rule, but not where the community had clearly made its wishes known.
The only councilmember other than Carsky to oppose the sale was Harry Oxman, who stated that he would be against the sale until it was known what "problems" the City would have as a result of the pending litigation. Oxman also observed that the concentration of so much subsidized housing in the Southwest had "almost annihilated" Getty Square.
At the close of the meeting, the City Council voted eleven to two to sell the site. In response to the City Council's vote, Plaintiff-intervenors applied to this Court for a preliminary injunction forbidding the sale of School 4. The City subsequently consented to the hold the sale in abeyance pending resolution of this litigation.
The City has argued that since it was under no duty to retain School 4 for possible use as a subsidized housing site, it cannot be held liable for attempting to sell it. It is well settled, however, that actions which are otherwise lawful lose that character when they are undertaken for a discriminatory purpose. See, e.g., United States v. City of Parma, supra, 494 F. Supp. at 1099. And in light of the historical background and sequence of events leading up to the attempted sale; the procedural irregularities and disregard of standard considerations which attended it; and the nature of the debate preceding the Council's vote, it is difficult to imagine a clearer case of an action taken for a discriminatory purpose.
The prime movers of the zone change and attempted sale of School 4 were councilmembers who made no secret of their opposition to the placement of subsidized housing (at least for families) in East Yonkers. Indeed, their own campaign literature has described them as "leading the fight" against it. GX 1301.9; 1302.10. And the record makes clear that School 4 came to be viewed as a primary battleground in that fight. The attempted sale was not a routine and race-neutral disposition of surplus property, but an effort to ensure that the site could not be used for the construction of subsidized housing in East Yonkers. As such, it reflects a clear intent on the part of City officials to continue the thirty-year pattern of discriminatory actions that has operated to exclude subsidized housing for families from East and Northwest Yonkers.
VI. THE EFFECT OF THE CITY'S ACTIONS ON THE RACIAL CONFIGURATION OF YONKERS
The City contends that regardless of whether its actions with respect to subsidized housing are found to have been motivated by segregative intent, it cannot be held liable for those actions since they did not significantly contribute to the extreme condition of segregation that exists in Yonkers today. The City's contention is without merit.
While the record contains apparently conflicting evidence on the question of whether the City's actions significantly exacerbated the level of minority concentration in Southwest Yonkers (the point on which the City's argument focuses), there can be no doubt that the City's actions have played a significant role in the preservation of East and Northwest Yonkers as overwhelmingly white communities.
Indeed, it is difficult to imagine a pattern of actions by City officials that could have done significantly more in this regard. Not one of the City's twenty-seven subsidized housing projects for families is located in any of the overwhelmingly white neighborhoods of East and Northwest Yonkers. Twenty-six are located in (or, in the case of Seven Pines, literally on the border of) Southwest Yonkers; the twenty-seventh is in Runyon Heights, a minority enclave in East Yonkers. Section 23 leased housing has likewise been largely confined to buildings located in the Southwest, and the Section 8 Existing program (which is subject to no formal geographic control by the City) was for several years limited to senior citizens, and even after its expansion to include families, appears to have been actively promoted only to Southwest Yonkers landlords.
Moreover, this is not a case in which City officials simply neglected to consider sites outside Southwest Yonkers for family housing. Instead, it is a case in which sites were repeatedly considered and then rejected after the residents of those overwhelmingly white communities made their strong objections known. It is also a case in which it was generally acknowledged, at least as early as 1966, that what was at issue in their site selections was whether the Yonkers community was "ready" to accept racial integration. See HOUSING III.D supra. As a result, it is clear that the City's actions not merely preserved but strengthened existing patterns of segregation by appearing to condone, or at least respect, the segregative sentiment that prevailed in East and Northwest Yonkers. If City officials themselves appear unable or unwilling to breach a racial barrier, it becomes all the more unlikely that individual minorities will be encouraged to try, or that individual whites will be encouraged to abandon the attitudes that have erected that barrier.
Cf. e.g., Reitman v. Mulkey, 387 U.S. 369, 18 L. Ed. 2d 830, 87 S. Ct. 1627 (1967); Shelley v. Kraemer, 334 U.S. 1, 92 L. Ed. 1161, 68 S. Ct. 836 (1947).
Thus, at least with respect to the issue of the City's liability for its actions, the precise effect of the actions on the Southwest is largely beside the point. In light of the clear effect of those actions on the racial composition of East and Northwest Yonkers, no more is required to confirm that the actions did indeed contribute significantly to the extreme condition of segregation that exists in Yonkers today. A plaintiff need not prove, with mathematical exactness, the precise effect of discriminatory actions in order to establish the defendants' liability for those actions. See, e.g., Armstrong v. O'Connell, 463 F. Supp. 1295, 1309-10 (E.D.Wis. 1979).
Nonetheless, it bears noting (if only to guide future consideration of appropriate remedial measures) that the evidence belies the City's contention that its actions did not significantly exacerbate the concentration of minorities in the Southwest.
The period between 1960 and 1980 was marked by striking demographic shifts in the City as a whole, and in the Southwest in particular. During those years, and particularly beginning in the mid to late 1960's, the citywide minority population increased by 325%, and 94% of that increase was concentrated in Southwest Yonkers and census tract 7 (a tract on the northern border of the Southwest, which contains the Seven Pines housing project). GX 1225.1; 1225.4; 1225.6.
During those same years, Southwest Yonkers also lost nearly half of its white population, resulting in a total rise in the level of minority concentration from 6.7% to 40.4%. GX 1225.1. The population of East and Northwest Yonkers, in contrast, remained overwhelmingly white. See HOUSING I supra (discussing the level of minority concentration in the various census tracts of East and Northwest Yonkers).
Plaintiffs contend that this markedly increased concentration of minorities in the Southwest is, in significant part, the result of the City's placement of more than 5,000 units of subsidized housing there (compared to less than 200 units elsewhere, none of which was family housing in a white area of the City). Specifically, plaintiffs contend that the City's actions with respect to subsidized housing "stigmatized" the Southwest as a minority area, thus making it more likely that minorities would seek housing there, and more likely that whites would leave. The City, in turn, contends that the population shifts that have occurred in the Southwest and primarily attributable to the large stock of substandard (and therefore low-cost) housing there and the general trend toward suburbanization among upwardly mobile whites, with subsidized housing having no significant incremental effect.
The weight of expert testimony on this point strongly favors the plaintiffs. Paul Davidoff, an expert witness in housing, who testified on behalf of the United States, and Diana Pearce, an expert witness on housing and school segregation, each testified persuasively, on the basis of their general experience and studies in their respective fields, that the City's concentration of subsidized housing in the Southwest was indeed likely to have stigmatized it as a minority area. Tr. 180-81, 258-59 (Davidoff); 8178-95 (Pearce). In further support of her view, Dr. Pearce presented a series of "microneighborhood" maps which strikingly illustrate the general increase in minority concentration that tended to follow construction of the City's subsidized housing projects. P-I 352.
In addition, and perhaps most significantly, plaintiffs' position even finds support in the testimony of the City's own expert witness on urban planning. Dr. Portman initially professed disagreement with plaintiffs' experts, but offered an explanation that suggested agreement more than disagreement (namely, that total abandonment of the Southwest might have had an even greater stigmatizing effect), and then conceded, when pressed, that there was "some logic" to the view expressed by plaintiffs' experts. Tr. 10,728-35 (Portman).
We agree that particularly when account is taken of the effect of the City's actions on the racial composition of East and Northwest Yonkers, there is considerable logic to the view expressed by plaintiffs' experts. When, as here, the City's actions with respect to subsidized housing have been found to have significantly contributed to the average minority member's inability (for reasons of race as well as economics) to find housing outside of Southwest Yonkers, it begs reason to suggest that those actions played no significant part in the circumstances that caused 94% of a large citywide increase in minorities to be concentrated in and around the Southwest.
Nor is it likely that those actions played no significant part in the Southwest's simultaneous loss of nearly half its white population. GX 1225.1. Common sense suggests, and the record as a whole confirms, that if obvious actions are being taken to preserve the overwhelmingly white character of all areas of a city except one, the incentive for whites to remain in that area will be significantly diminished. Indeed, decisive support for plaintiffs' theory of stigmatization is found in the concerns repeatedly expressed or alluded to in Yonkers by minority and church leaders seeking to stop further concentration of subsidized housing in the Southwest; by white residents of East Yonkers seeking to prevent the construction of subsidized housing there; and by some City officials themselves, who sought to blunt the stigmatizing effect by trying, in large part unsuccessfully, to attract more whites to the Southwest's projects. See, e.g., HOUSING III.D, IV.B, IV.D.3, IV.D.4, and IV.D.5 supra.
The only significant evidence offered by the City in rebuttal is a statistical analysis of the City's census tract data undertaken by Eric Hanushek, who testified as an expert witness in urban economics. Broadly summarized, Dr. Hanushek testified that at least when certain other likely contributing factors are also taken into account (namely, the large stock of nonsubsidized low-cost housing in the Southwest; the general minority presence there; and the trend toward suburbanization among upwardly mobile whites), it does not appear probable that subsidized housing development in Yonkers played any significant incremental role in the sharp increase in minority concentration that has occurred in the Southwest. See Tr. 9053-113.
However, there are many reasons to question the probative value and, indeed, the relevance of Dr. Hanushek's analysis, particularly when it is weighed against the evidence supporting plaintiffs' contrary contention. First, as Dr. Hanushek himself acknowledged, his conclusion was based solely on statistical probabilities derived from the City's census tract data, not from any study of the history of subsidized housing in Yonkers. Moreover, the factors analyzed by Dr. Hanushek were conceded to be overlapping and mutually reinforcing, thus complicating considerably the statistical analysis by which the probable individual contribution of each factor is derived. Tr. 9071, 9160-62. Although Dr. Hanuskek nonetheless expressed confidence in the capacity of his statistical methods to derive meaningful probabilities, the mechanics of those methods did not prove sufficiently capable of articulation to allow the Court to share that confidence.
Finally, and by far most significantly, Dr. Hanushek conceded that various circumstances which could not be taken into account in his study might significantly affect the reliability of his calculations. Tr. 9133-39. And among those circumstances is the very one cited to plaintiffs as the primary basis for their contention that subsidized housing indeed contributed to the sharp rise in minority concentration in the Southwest.
The point can best be illustrated in a somewhat simplified form. Dr. Hanushek's analysis reflects, at least in significant part, a judgment that the amount of subsidized housing in the Southwest was, in comparison to the amount of other low-cost housing there, sufficiently low so as to suggest that its presence probably had no significant incremental effect on minority concentration. However, if the subsidized housing carries with it the stigma of having been adjudged to be minority housing, and therefore unsuitable for other areas of the city, the placement of that housing in the Southwest may have had a far greater influence on the resulting level of minority concentration than would otherwise be suggested by the ratio of subsidized to nonsubsidized low-cost housing in the area. Since Dr. Hanushek's analysis cannot detect, much less measure that added influence, it must assume its absence. As a result, the analysis fails to address, much less rebut, the evidence tending to show that subsidized housing did exert a stigmatizing influence. Instead, it merely suggests that if no particular stigma was attached to subsidized housing, it probably had no significant incremental effect on the concentration of minorities. As a result, even if the calculation of probabilities is reliable, the underlying assumption renders the analysis irrelevant to our inquiry.
One final aspect of the evidence presented during Dr. Hanushek's testimony is so misleading as to require separate, although brief, discussion. Using the figures derived from his analysis, Dr. Hanushek projected the probable racial composition of a hypothetical Yonkers in which no subsidized housing whatever had been built. That projection estimated the probable difference to be limited to a decrease of some 78 to 98 individuals among the entire Southwest population. C-1704.
For the various reasons described above (chief among them the assumption that subsidized housing carried with it no particular racial stigma), the projection is, in any event, wholly unreliable. But it is rendered especially misleading by an additional assumption, for which Dr. Hanushek offered no justification and which is totally unrealistic and unfounded -- namely, that if no subsidized housing had been built in Yonkers, the same amount of housing would have remained available in the private market.
The City has since suggested that the assumption is a reasonable one since there is evidence tending to show that private-market units were removed at roughly the same rate at which subsidized housing units were built. See Tr. 10,730 (Portman) (discussing the figures for the 1970's). But even assuming that the City's construction of subsidized housing did not result in any significant increase in the overall density of the Southwest, it by no means follows that if no subsidized housing had been built, the density of the Southwest is likely to have remained constant. To the contrary, the record makes clear that much of the housing stock in the Southwest was rapidly deteriorating, thus leading to a steady loss of density unless the units were repaired or replaced. In addition, the record makes equally clear that the private market was unlikely to undertake that task on any significant scale. Indeed, as the City itself has emphasized in another context, it was precisely the absence of private-market interest in the Southwest which made some form of federally funded urban renewal there essential, and which in turn made the construction of subsidized housing somewhere in Yonkers equally essential. Thus, the "hypothetical" Yonkers described by Dr. Hanushek is, on the basis of the record before us, so unrealistic that any conclusions that may be drawn about it are simply irrelevant to this case.
In addition, it bears emphasis that the City could, in any event, have hoped to gain little by comparing the effect of its actions with that of what its own expert witness in urban planning described as the "worst case" alternative -- failing to construct any subsidized housing anywhere in the city, and thereby failing to obtain urban funds, and thus consigning Southwest Yonkers to continued and increasingly serious deterioration. Tr. 10,737 (Portman). Obviously, the only relevant comparisons to be made are with the effects of the alternatives reasonably available to the City and under circumstances reasonably likely to occur. Dr. Hanushek's analysis made no attempt at such comparisons. Indeed, he acknowledged that the limitations of the analytical methods available to him did not permit such comparisons to be made. Tr. 9214-15.
A passing attempt to compare the effect of reasonable alternatives was made in a question put to Dr. Portman about the probable effect that constructing 200 units of family housing in East Yonkers would have had on the level of minority concentration in Southwest Yonkers. But Dr. Portman's response -- that, in his opinion, it would have had no significant effect -- was also made in passing and is surely overbroad. Tr. 10,738 (Portman). It seems clear that the likely effect would depend on such variables as when the housing was built, what else was put in its place in the Southwest, and what other actions were being taken to promote fair housing in East and Northwest Yonkers. Moreover, even if Dr. Portman's opinion is credited, the construction of only 200 units elsewhere was not the only alternative open to the City. Finally, as suggested at the outset of this discussion, however uncertain the effect of the alternative may have been with respect to Southwest Yonkers, its likely effect with respect to East and Northwest Yonkers is clear. As Dr. Portman himself appeared to acknowledge, even the construction of so small an amount as 200 units of family housing in East Yonkers would have been likely to have exerted a significant integrative influence on the area. Tr. 10,786-88 (Portman).
A recurrent theme in the City's arguments to the Court has been that it is under no affirmative duty to promote integration through the construction of subsidized housing. But the absence, in the abstract, of such an affirmative duty does not equal a license to discriminate in decisions relating to subsidized housing. It does not, for example, equal a license to refuse to build subsidized housing, despite a need for it, on the ground that it might result in racial integration. See, e.g., United States v. City of Parma, supra. Nor does it equal a license to make the preservation of existing patterns of segregation a factor in site selection. See, e.g., Gautreaux v. Chicago Housing Authority, supra.
Nor, it should be emphasized, is this a case in which the claim of segregative intent must rest merely on a failure to take, despite the opportunity and reason to do so, a sufficient number of actions having an integrative effect. Instead, it rests on a thirty-year practice of consistently rejecting the integrative alternative in favor of the segregative -- a practice that had the unsurprising effect of perfectly preserving, and significantly exacerbating, existing patterns of racial segregation in Yonkers.
VII. CONCLUSIONS OF LAW
It is commonplase among courts and commentators that the task of determining whether actions were taken with discriminatory intent is a difficult one. Intent has been characterized as an "elusive, subjective concept," Hawkins v. Town of Shaw, 461 F.2d 1171, 1172 (5th Cir. 1972) (en banc) (per curiam), and particularly difficult to identify when the intent at issue is the "collective" intent of a legislative or administrative body. See, e.g., Palmer v. Thompson, 403 U.S. 217, 224-25, 29 L. Ed. 2d 438, 91 S. Ct. 1940 (1971); Hart v. Community School Board of Education, New York School District #21, 512 F.2d 37, 50 (2d Cir. 1975). The task of determining intent is further complicated by the likelihood that there may be little or no direct evidence of discriminatory intent, especially with respect to actions taken during the past few decades, due to the growing unacceptability of overtly bigoted behavior, and a growing awareness of the possible legal consequences of such behavior. Cf. Smith v. Town of Clarkton, 682 F.2d 1055, 1064-65 (4th Cir. 1982); Arlington Heights II, supra, 558 F.2d at 1290; United States v. City of Parma, supra, 494 F. Supp. at 1054.
In some respects, the case at hand might seem to present an unusually difficult exercise in determining intent. What is at issue is not a single action, or series of actions, undertaken by a single group of individuals, but more than thirty years of subsidized housing activity, for which a sizable and changing group of City officials shared responsibility. We are aware of only two prior cases that are of even roughly comparable scope, see United States, v. City of Parma, supra; Gautreaux v. City Housing Authority, supra, and in neither case were the challenged actions defended with the vigor and sophistication with which the City of Yonkers has defended its actions here.
For several reasons, however, our conclusion that plaintiffs have sustained their burden of proving a pattern and practice of discrimination is a relatively easy one. First, as suggested at the outset of this Opinion, when the segregative effect of an action is extreme, or when there is a series of actions having a consistently segregative effect, the inference is stronger that the effect of the actions was intended. E.g., Arlington Heights I, supra, 429 U.S. at 266; Washington v. Davis, 426 U.S. 229, 241-42, 48 L. Ed. 2d 597, 96 S. Ct. 2040 (1976); Yick Wo v. Hopkins, 118 U.S. 356, 30 L. Ed. 220, 6 S. Ct. 1064 (1886). Here, the segregative effect of the actions challenged by plaintiffs has been remarkably consistent and extreme. It is, to say the least, highly unlikely that a pattern of subsidized housing which so perfectly preserved the overwhelmingly white character of East and Northwest Yonkers came about for reasons unrelated to race. See Gautreaux v. Chicago Housing Authority, supra, 296 F. Supp. at 910; United States v. City of Parma, supra, 494 F. Supp. at 1097.
In addition, despite the considerable span of time involved, and the various changes in City personnel and in the structure of the subsidized housing programs themselves, there have been several constants in the development of subsidized housing in Yonkers which strongly suggest that these segregative effects were not adventitious. One constant has been the emergence of strong community opposition following the proposal, or even the preliminary discussion, of sites for subsidized housing for families when those sites are in the heavily white areas of Yonkers -- in particular, East Yonkers.
Another constant has been a political structure likely to make community opposition unusually effective. Plaintiffs have established that the operation of the City's ward system provided strong incentive for individual councilmen to defer to the views of their constituents on subsidized housing, and for the Council as a whole to defer to the views of the ward councilman. Cf. Gautreaux v. Chicago Housing Authority, supra, 296 F. Supp. at 913 (discussing the effect of Chicago's ward system). Plaintiffs have also established that this phenomenon was well known to the Planning Board, the CDA, the MHA, and others who worked with the City in the development of subsidized housing. Cf. United States v. City of Parma, supra, 494 F. Supp. at 1096 (discussing the effect of attitudes expressed by City leaders on subordinate local officials).
A third constant has been the extreme consistency with which the sites that have prompted opposition in East Yonkers and other heavily white areas have in fact been subsequently rejected, abandoned, or otherwise opposed by City officials.
These constants strongly suggest that whatever differences in personnel or programs there may have been throughout the years, subsidized housing in Yonkers has been characterized by a common theme: racially influenced opposition to subsidized housing in certain areas of the City, and acquienscence in that opposition by City officials.
The City has cited cases in which courts have cautioned against determining the nature of community opposition, or its effect on City officials, largely on the basis of the "bigoted comments of a few citizens." Arlington Heights II, supra, 558 F.2d at 1292; see also Angell v. Town of Manchester, 3 E.O.H.C. P15,398 (D.Conn. 1981); United States v. City of Birmingham, supra. But this is clearly not such a case. A finding that there has been sustained racially influenced community opposition to the placement of subsidized housing in certain areas of Yonkers would not be based simply on the fact that in 1958, for example, a group of citizens sent City Council members a letter in opposition to subsidized housing which expressed concern about having "to absorb the overflow from Harlem and Puerto Rico," or that as late as 1982, a white resident of East Yonkers was met with loud applause from an overwhelmingly white audience when he spoke against subsidized housing at a City Council session, contending that blacks had ruined neighborhoods in the Bronx and that he did not want the same thing to happen in his neighborhood. Such statements form only a small part of the evidence which suggests that the community opposition in question was racially influenced.
As suggested above, among the most persuasive indications of racial influence here is the extreme consistency with which community opposition has arisen when the site proposed was in a heavily white area of the City -- especially East Yonkers. Of all the many East Yonkers sites proposed or publicly discussed in the course of more than thirty years (with the exception of those in heavily black Runyon Heights), only one site appears to have prompted little or no community opposition -- the site of Curran Court, a senior citizens project that has been virtually all white since opening. The uniformity of opposition to sites in overwhelmingly white East Yonkers argues strongly against a finding that the opposition was genuinely site-specific and race-neutral.
Further indications of a racial aspect to the opposition include the evidence that there was longstanding and, since the mid-1960's, increasing racial polarization in Yonkers, cf., e.g., Kennedy Park Homes Association v. City of Lackawanna, 436 F.2d 108, 113 (2d Cir. 1970), cert. denied, 401 U.S. 1010, 91 S. Ct. 1256, 28 L. Ed. 2d 546 (1971); Smith v. Town of Clarkton, supra; United States v. City of Parma, supra ; the evidence that subsidized housing for senior citizens (which, unlike subsidized housing for families, tended to be heavily white) often provoked less opposition in heavily white areas, cf., e.g., Atkins v. Robinson, 545 F. Supp. 852, 874 (E.D.Va. 1982), aff'd 733 F.2d 318 (4th Cir. 1984); United States v. City of Birmingham, supra; United States v. City of Parma, supra, 494 F. Supp. at 1091-94; Gautreaux v. Chicago Housing Authority, supra 296 F. Supp. at 912; and the nature of the objections most often raised -- objections based upon the "incongruity" of putting a subsidized housing project in a particular area; the belief that subsidized housing should be restricted to "slum" areas; concern about deterioration of the neighborhood and property values; and what City officials themselves disparaged as the "standard litany" of inadequacies. Such objections can be convenient substitutes for explicity racial statements, and they have been construed as such when appearing in conjunction with other evidence of discriminatory intent. See, e.g., Smith v. Town of Clarkton, supra; United States v. City of Birmingham, supra; United States v. City of Parma, supra.
Finally, and most significantly, there is the testimony of the City's own officials and other on-the-scene observers. Numerous City officials -- including a former mayor -- and others who were directly involved in site selection acknowledged at trial that they themselves believed that much of the community opposition they encountered was racially influenced -- specifically, influenced by the fear that subsidized housing would result in an "invasion" of minorities into the area.
To be sure, the evidence does not support a finding that the community opposition was based wholly upon race, or that the position of every community opponent was based, at least in part, upon race. But such findings could rarely, if ever, be made; nor are they required here. What is required, and what the evidence clearly supports, is a finding that the desire to preserve existing patterns of segregation has been a significant factor in the sustained community opposition to subsidized housing in East Yonkers and other overwhelmingly white areas of the City. See Smith v. Town of Clarkton, supra, 682 F.2d at 1066; United States v. City of Birmington, supra, 538 F. Supp. at 826.
The evidence is equally clear that City officials consistently responded to that opposition. While a single instance of the rejection or abandonment of a proposed action following the emergence of community opposition may not create a strong inference that the decision was a response to the opposition, a pattern of opposition followed by rejection or abandonment is another matter, particularly when the political system controlling the decisionmaking process is shown to be hypersensitive to adverse community reaction. Here, as noted above, there is evidence of a pattern of more than thirty years' duration, and of a political system in which the ward councilman exercised unusual influence over the Council as a whole, and in which ward residents, in turn, exercised unusual influence over the ward councilman.
In addition, the record is replete with contemporaneous statements and trial testimony by City officials and other on-the-scene observers which further suggest that for more than thirty years, the site selection process for subsidized housing was dominated by the unwillingness of the City Council to approve or support a site in the face of community opposition. The single most notable, but by no means only, testimony in confirmation of the effect of community opposition was that of former Mayor Alfred Del Bello, who testified to the "tremendous pressure" put on East Yonkers councilmembers by the opponents of subsidized housing, and who stated flatly that the reason why the numerous sites selected during his administration were all in Southwest Yonkers was that they were the only sites the City Council would approve.
The City has suggested that the plaintiffs are required to prove, on a vote-by-vote basis, that the desire to appease racially influence community opposition was the deciding factor for a specific, identified majority of the City Council or other City agency responsible for each action at issue in the case.
If indeed this were the legal standard, however, the burden of proving discriminatory intent would no longer be merely difficult, but instead virtually impossible. And, in fact, it clearly is not the standard.
To the contrary, it is well established that the intent of collective actions can, and often must, be established circumstantially. See Arlington Heights I, supra, 429 U.S. at 266-68. For, as one court observed, "[i]f proof of a civil right violation depends on an open statement by an official of an intent to discriminate, the Fourteenth Amendment offers little solace to those seeking its protection." Dailey v. City of Lawton, 425 F.2d 1037, 1039 (10th Cir. 1970). And as the Supreme Court noted in Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 60 L. Ed. 2d 870, 99 S. Ct. 2282 (1979):
The inquiry [into intent] is practical. What a legislature or any official entity is 'up to' may be plain from the results its actions achieve, or the results they avoid. Often it is made clear from what has been called, in a different context, "the give and take of the situation."
442 U.S. at 279 n.24 (citation omitted).
Here, based upon the pattern of actions taken, the political structure of the decisionmaking process, and the statements of City officials and others involved in City affairs, there can be little doubt that with respect to the selection of sites for subsidized housing, appeasement of racially influenced community opposition was an important factor for a very "significant percentage of those who were responsible for the city's conduct," United States v. City of Birmingham, supra, 538 F. Supp. at 828.
The City has offered various alternative explanations for the pattern of sites approved by City officials, but the explanations are plausible only if evaluated in the abstract. When applied to the record, none raises any significant doubt about the effect of community opposition on site selection.
The explanation most vigorously pressed by the City is that the concentration of sites in Southwest Yonkers reflects nothing more than a strategy to use subsidized housing to revitalize the Southwest. That explanation, however, is simply not supported by the record. With respect to the pre-Riverview period (HOUSING III supra) there is little in the record to suggest that there was a conscious decision to focus on the Southwest in choosing sites for subsidized housing, and much to suggest the contrary. With respect to the Riverview period, there is little to suggest that any decisions to do so were unrelated to the continuing community opposition to the placement of subsidized housing elsewhere in the City. Indeed, the sequence of events preceding site selections during this period, and the testimony of former Mayor DelBello Del Bello and others, strongly suggest the contrary. With respect to the post-Riverview period (HOUSING V supra), the continued concentration of subsidized housing in the Southwest in fact ran counter to at least some aspects of the stated planning strategy of the City.
Nor does the record support the City's suggestion that despite the evidence of pervasive community pressures, the site selection process over the years was governed by the routine application of standard planning criteria. In addition to the strikingly predictable effect that the existence of community opposition had on the fate of proposed sites, the record reflects repeated disregard of Planning Board objections or recommendations; inconsistent application of stated planning criteria; and, in general, varying degrees of scrutiny depending upon whether the site in question was east or west of the Saw Mill River Parkway. See Arlington Heights I, supra, 429 U.S. at 267.
Nor, it should be emphasized, is there any basis for doubt that City officials were fully aware that the course they were pursuing was one of segregation. The potentially segregative or integrative effect of site selections was publicly addressed at least as early as 1958; and from the mid-1960's on, the issue was regularly raised by community leaders, HUD representatives, and the City's own officials. Cf., e.g., United States v. City of Parma, supra, 494 F. Supp. at 1097 (segregative effect not only foreseeable, but actually foreseen).
Yet, City officials continued to accede to community opposition which they believed, according to their own testimony, to be influenced by fear that construction of subsidized housing would result in an invasion of minorities into the surrounding area. Indeed, during the "post-Riverview" period, numerous City officials not only responded to, but, in the words of the campaign literature of some, "led the fight against subsidized housing in East Yonkers." That "fight" has included, most notably, a three-year refusal to apply for Section 8 Existing Certificates for Families -- a refusal this Court finds inexplicable except on the basis of fear that minorities might use the certificates to relocate to East Yonkers -- and the attempted sale of School 4 (a site widely viewed as a potential site for subsidized housing in East Yonkers) under circumstances which provide a virtual compendium of the factors that courts have been charged to look for in order to detect the presence of discriminatory intent. See Arlington Heights I, supra, 429 U.S. at 266-68.
In short, we find the unusual scope and complexity of plaintiffs' contentions to be matched by evidence of discriminatory intent that is itself unusual in its strength and abundance. Having considered the evidence in its entirety, this Court is fully persuaded that the extreme concentration of subsidized housing that exists in Southwest Yonkers today is the result of a pattern and practice of racial discrimination by City officials, pursued in response to constitutent pressures to select or support only sites that would preserve existing patterns of racial segregation, and to reject or oppose sites that would threaten existing patterns of segregation. This pattern of discriminatory actions is evident as early as the first selection of sites for public housing under the National Housing Act of 1949, and it has continued, unbroken, through the attempted sale of School 4 in 1982.
Two remaining issues merit brief discussion. One concerns the effect of HUD's involvement in the City's subsidized housing activities; the second, the City's contention that regardless of whether race had been a factor in site selection, the results would have been precisely the same.
During the course of trial and in its post-trial submissions, the City has raised a variety of arguments relating to the effect of HUD's approval of the sites upon which subsidized housing has been constructed in Yonkers. In particular, the City has urged that HUD is entitled to great deference in its determination that each of the sites complied with all legal requirements, and even that HUD's approval "insulates" the City from any liability with respect to those sites.
However, the City has cited no case, nor are we award of any, which has held that a site's approval by HUD creates any presumption that segregative intent was not at work in its selection.
Nor do we believe that such a presumption would be appropriate, at least in the present case. As an initial matter, the case before us is a pattern and practice case, the very essence of which is a recognition that the illegal basis of actions may emerge clearly only when the actions are viewed together. See United States v. City of Parma, supra, 494 F. Supp. at 1055 (citing cases). In such a case, any approval of individual actions necessarily must carry limited weight.
In addition, the record before us does not suggest that HUD's various approvals reflected an informed and considered judgment that the City's actions were not motivated, in whole or in part, by segregative intent. Indeed, the record reflects repeated expressions of concern about the basis of the City's actions, and repeated instances in which those concerns were pursued incompletely or not at all. Moreover, there is evidence that on more than one occasion the City misrepresented to HUD the extent of its efforts to achieve at least some measure of geographic dispersal of subsidized housing in Yonkers. In light of these circumstances, and in the context of the record as a whole, HUD's actions do not negate a finding that the City has engaged in pattern and practice of housing discrimination.
Nor do HUD's actions "insulate" the City from liability for the consequences of that discrimination. HUD has no power to excuse discriminatory acts or to waive, on behalf of those injured by them, the right to seek a remedy. Nor is the City's duty not to discriminate defined simply as a duty to comply with HUD's orders. Thus, HUD's longstanding "failure to insist" that the City construct at least some subsidized housing for families in East Yonkers -- a failure the City has repeatedly stressed -- has no bearing on the City's liability for the consequences if its persistent refusal to do so is later challenged and found to have been motivated by segregative intent.
In the case of abundant evidence of a longstanding practice of racial discrimination in site selection for subsidized housing, the City cannot escape liability on the ground that HUD did not do more to encourage or compel the City to abandon that practice.
The remaining argument made by the City against entry of judgment for plaintiffs is based upon the principle that such a judgment is unwarranted if the defendant can establish that the same actions would have been taken even in the absence of a discriminatory motive. See Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 287, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977); Arlington Heights I, supra, 429 U.S. at 270 n.21.
In this regard, the City contends that the need for improved housing and general revitalization in Southwest Yonkers was so pressing that, whether or not race was a factor in site selection, precisely the same sites would have been chosen. In support, the City points to the Community Renewal Plan prepared by Patrick Kane of KRS Associates, an outside planning consultant, and the testimony of David Portman, the City's expert witness on urban planning.
However, for many of the same reasons that this evidence failed to support the City's contention that its site selections were in fact unrelated to race, it likewise fails to suggest that the same sites would have been selected even if race has not been an issue. While Dr. Portman testified that an extreme concentration of subsidized housing in the Southwest would not have been unreasonable from a planning perspective, he also acknowledged that it was not the only means of responding to the needs of the area, nor even necessarily a preferable means. Such testimony scarcely suggests a strategy so compelling that it would have been pursued even if the decisionmaking process had not been influenced by the perceived need to select sites that would maintain existing patterns of segregation. Similarly, Patrick Kane's recommended plan, as reflected in the CRP, tells little about what might have happened in Yonkers if race had not been an issue in site selection since the plan itself was recommended after thorough research into past and present attitudes in Yonkers -- research which Kane acknowledged to have led him to believe that there was pervasive community opposition to subsidized housing in East Yonkers, that the opposition was racially influenced, and that the prospects for approval of any site there were virtually nonexistent.
Moreover, much of the same evidence which has confirmed that this racially influenced community opposition did in fact have an effect on site selection -- namely, evidence of disregard or compromise of previously stated planning objectives; failures to consult the City's Planning Bureau; the testimony of the City's Planning Director with respect to his opposition to many of the sites chosen by the City; the differing levels of scrutiny given to sites depending upon whether they were located east or west of the Saw Mill River Parkway; and inconsistent application of planning criteria -- also preclude any rational finding that precisely the same sites would have been selected even if race had not been a factor. In this regard, it bears particular emphasis that the widely acknowledged negative effects (economic as well as racial) that have resulted from the concentration of subsidized housing in Southwest Yonkers did not become apparent only after the fact. Instead they were the subject of repeated warnings (often from the City's own Planning Director) which were repeatedly ignored by City officials.
In sum, the record clearly demonstrates that race has had a chronic and pervasive influence on decisions relating to the location of subsidized housing in Yonkers. While the precise configuration of subsidized housing which would have arisen in the absence of that influence necessarily remains a matter of speculation, it is clear that "but for" that influence, a sighnificantly significantly different result would have obtained. See Givhan v. Western Line Consolidated School District, 439 U.S. 410, 416-17, 58 L. Ed. 2d 619, 99 S. Ct. 693 (1979).
I. THE CLAIMS OF UNLAWFUL SCHOOL SEGREGATION
This case is similar in some respects to the many cases which have arisen since the Supreme Court's 1954 decision in Brown v. Board of Education declaring that state-mandated racial segregation in public schools was unlawful. In subsequent cases, when a particular public school system has been found to be racially segregated, that condition has typically arisen as a result of a variety of complex and interrelated acts and omissions, rather than the overtly discriminatory operation of a statutorily-mandated dual school system. Thus, although racially segregated school facilities mandated by statute have been outlawed in New York State since the early 1900's, N.Y. Educ. Law § 3201 (McKinney 1970), this fact is merely the beginning of our inquiry, for we must determine whether the numerous actions and omissions of the responsible City and school authorities in Yonkers have nevertheless created or maintained a segregated school system with the impermissible segregative intent proscribed by federal statute and by the Constitution.
In three significant respects, however, this case is different from the typical school desegration case: the plaintiffs in this case have joined claims of unlawful school segregation with claims of governmental housing discrimination;
plaintiffs have alleged that both the City and the Board should be held liable for the intentional segregation of the Yonkers public schools; and resolution of plaintiffs' claims requires us to consider whether governmental housing discrimination is relevant to the determination of liability for school segregation.
Plaintiffs allege that the Board, by various acts and omissions, has caused the Yonkers public school system to become and remain racially segregated. Plaintiffs have sought to establish that the Board has engaged in various types of conduct which were intended to bring about and perpetuate such segregation. These segregative practices may be summarized in six major categories: (1) a pattern of segregative decisions with respect to the opening and closing of schools, and the alteration of attendance zone boundaries for racial reasons; (2) the assignemnt of faculty and administrative staff according to the racial composition of the students at individual schools; (3) the discriminatory classification, transportation, and other treatment of minority Special Education students; (4) the steering of minorities into vocational education programs and the subsequent screening of minorities out of such programs and into inferior general academic programs; (5) the failure to provide minority students with equal educational opportunities; and (6) the failure to adopt, for racial reasons, various desegregative school reorganization and educational reform plans. Plaintiffs allege that these acts and omissions constitute a sufficient basis for a finding of unlawful school segregation independent of any actions or omissions on the part of the City.
In response, the Board alleges that the racial imbalance that exists in many of the district's schools has been caused by social, economic and demographic factors that are beyond its control. The Board contends that the various acts and omissions noted above were not intentionally segregative (or, in some instances, not in fact segregative regardless of intent) and that Board policies were essentially irrelevant in any event to the causes of racial imbalance in the schools. In addition, the Board contends that no affirmative action is constitutionally required of it to alleviate racial imbalance in the schools not caused by any intentionally segregative acts of the Board, and that adherence to its neighborhood school policy has been race-neutral in intent and is in any event an insufficient legal basis for a finding of liability.
As for the City, plaintiffs have sought to establish its liability for school segregation based on a number of factors, all of which have allegedly served to create and maintain racial imbalance in the Yonkers public schools. Plaintiffs claim that the City has intentionally confined the construction and placement of subsidized housing to Southwest Yonkers in part to confine minority students to public schools in this area of the city, and that such conduct is, standing alone, a basis for finding the City liable for the racial segregation of the schools. In addition, plaintiffs contend that the City's involvement in educational affairs -- including the site selection process for newly constructed schools; the Mayor's appointment of Board members; and the City Council's budgetary control over the Board and "will of the Council" resolutions -- has given the City significant influence and effective control over the Board and has been designed in part to perpetuate the racial segregation of the Yonkers public schools. Plaintiffs contend that the City's influence and control over school affairs, together with its subsidized housing practices, constitute adequate grounds for holding the City liable for the racial segregation of the schools.
The City contends that neither its housing practices nor its involvement in school affairs are a proper basis for a finding of municipal liability for the racial segregation of Yonkers public schools. The City argues that a policy of restricting the location of subsidized housing to Southwest Yonkers, whether or not violative of Title VIII and the Constitution, does not constitute legal grounds for a finding of unlawful school segregation and that, as a factual matter, its housing practices have not caused or exacerbated racial segregation in the Yonkers public schools. The City also argues that it has neither legal nor practical control over the Board of Education and thus is not responsible for the segregation of the Board-operated schools. The City has attempted to show that the City's budgetary appropriation power, the mayoral appointments to the Board, the City's involvement in school site selection, and City Council resolutions have not resulted in City control over the school district and have not been used to intentionally cause or maintain racial segregation in the Yonkers public schools.
II. LEGAL STANDARDS
The legal standards governing the school desegregation portion of this case have evolved from the Supreme Court's historic decision in Brown v. Board of Education, 347 U.S. 483, 98 L. Ed. 873, 74 S. Ct. 686 (1954). In Brown, the Supreme Court held that statutorily imposed separate school facilities for blacks and whites were unconstitutional. Since that decision, a myriad of school desegregation cases have established that less blatant forms of racial segregation in public schools are similarly unlawful. It is equally clear, however, that the mere existence of racially segregated schools does not constitute a federal constitutional or statutory violation. Columbus Board of Education v. Penick, 443 U.S. 449, 464, 61 L. Ed. 2d 666, 99 S. Ct. 2941 (1979); Keyes v. School District No. 1, 413 U.S. 189, 198, 37 L. Ed. 2d 548, 93 S. Ct. 2686 (1973); Alexander v. Youngstown Board of Education, 675 F.2d 787, 791 (7th Cir. 1982); Arthur v. Nyquist, 573 F.2d 134, 141 (2d Cir.), cert. denied, 439 U.S. 860, 99 S. Ct. 179, 58 L. Ed. 2d 169 (1978). Similarly, the mere existence of de facto segregation does not create an obligation on the part of a school board to alleviate or rectify such segregation. See Diaz v. San Jose Unified School District, 733 F.2d 660, 664 (9th Cir. 1984) (en banc), cert. denied, 471 U.S. 1065, 105 S. Ct. 2140, 85 L. Ed. 2d 497 (1985); Alexander v. Youngstown Board of Education, supra, 675 F.2d at 791; Parent Association of Andrew Jackson High School v. Ambach, 598 F.2d 705, 713 (2d Cir. 1979) ("If there is no de jure segregated school system, there is no judicially-enforceable constitutional obligation, under existing law, to take affirmative action to remedy racial imbalance."). Under current legal standards, plaintiffs have the burden of demonstrating that (1) the Yonkers public schools are racially segregated; (2) such segregation was created or maintained by the intentionally segregative conduct of governmental authorities; and (3) such conduct has affected the school system as a whole. See Keyes v. School District No. 1, supra, 413 U.S. at 205-09 (1973); Arthur v. Nyquist, supra, 573 F.2d at 141.
Each of these elements has been explored in prior school desegregation decisions. As for the first element, the existence of racial segregation need not be numerically absolute so long as the public schools are substantially segregated and racially identifiable. Arthur v. Nyquist, 415 F. Supp. 904, 912 n.9 (W.D.N.Y. 1976), aff'd on reconsideration, 429 F. Supp. 206 (W.D.N.Y. 1977), aff'd in part and rev'd in part on other grounds, 573 F.2d 134 (2d Cir.), cert. denied, 439 U.S. 860, 99 S. Ct. 179, 58 L. Ed. 2d 169 (1978); see also Keyes v. School District No. 1, supra, 413 U.S. at 196. Blacks and hispanics are to be considered as a group in determining whether the school system is racially segregated. See Keyes v. School District No 1, supra, 413 U.S. at 197-98; Hart v. Community School Board of Education, New York School District #21, 512 F.2d 37, 45 n.10 (2d Cir. 1975); see also Alioto Dep. 34; Schainker Dep. 32; Tr. 10,973-74 (Jacobson).
The second element encompasses a number of legal concepts: causation, state action and intent. As for caustion causation, the conduct of school authorities need not be the sole cause of racial segregation, but such conduct cannot be of trivial or de minimus impact. Plaintiffs must demonstrate that the defendant's conduct has contributed in a substantial manner to the creation or perpetuation of racial segregation. Berry v. School District of Benton Harbor, 442 F. Supp. 1280, 1292 (W.D.Mich. 1977). In addition, the "conduct" of school authorities includes omissions as well as affirmative acts. Thus, although the mere failure to act, without more, does not form the basis for a finding of de jure segregation, see Hart v. Community School Board, supra, 512 F.2d at 48; Brody-Jones v. Macchiarola, 503 F. Supp. 1185, 1248 (E.D.N.Y. 1979), the inaction of school authorities may be considered along with evidence of school board action in determining whether the racial segregation of the public schools has been brought about or maintained in an unlawful manner. See Parent Association of Andrew Jackson High School v. Ambach, supra, 598 F.2d at 714; NAACP V. Lansing Board of Education, 559 F.2d 1042, 1046-47 (6th Cir.), cert. denied, 434 U.S. 997, 54 L. Ed. 2d 49, 98 S. Ct. 635 (1977); Morgan v. Kerrigan, 509 F.2d 580, 586 (1st Cir. 1974), cert. denied, 421 U.S. 963, 44 L. Ed. 2d 449, 95 S. Ct. 1950 (1975).
The intent requirement has been discussed previously in this Opinion. See HOUSING II supra. In applying this requirement, many of the school desegregation cases of the 1970's relied in significant part on evidence that the conduct of the relevant school authorities had a foreseeably segregative impact. Some courts went to far as to hold that a presumption of segregative purpose arises when plaintiffs establish that the natural, probable, and foreseeable result of public officials' action or inaction was an increase or perpetuation of public school segregation. The presumption becomes proof unless defendants affirmatively establish that their action or inaction was a consistent and resolute application of racially neutral policies.
Oliver v. Michigan State Board of Education, 508 F.2d 178, 182 (6th Cir. 1974), cert. denied, 421 U.S. 963, 44 L. Ed. 2d 449, 95 S. Ct. 1950 (1975); see United States v. Texas Education Agency, 532 F.2d 380, 388-89 (5th Cir.), vacated and remanded sub nom. Austin Independent School District v. United States, 429 U.S. 990, 50 L. Ed. 2d 603, 97 S. Ct. 517 (1976); United States v. School District of Omaha, 521 F.2d 530, 536 (8th Cir.), cert. denied, 423 U.S. 946, 46 L. Ed. 2d 280, 96 S. Ct. 361 (1975); see also Hart v. Community School Board, supra, 512 F.2d at 51. While the Supreme Court, in Dayton Board of Education v. Brinkman, has rejected the use of such a presumption as a means of establishing segregative intent or shifting the burden of persuasion on the intent issue to the defendant, 443 U.S. 526, 536 n.9, 99 S. Ct. 2971, 61 L. Ed. 2d 720 (1979), the Court nevertheless reaffirmed that "proof of foreseeable consequences is one type of quite relevant evidence of racially discriminatory purpose." Id.; see also Columbus Board of Education v. Penick, supra, 443 U.S. at 464-65 (foreseeable effect of decision is "one of the several kinds of proofs from which an inference of segregative intent may properly be drawn"); Alexander v. Youngstown Board of Education, supra, 675 F.2d at 792-93 (court may infer discriminatory intent from acts or policies with foreseeably segregative result; inference is permissible rather than mandatory).
In evaluating whether the decision of school authorities were motivated by segregative intent, courts have analyzed evidence of foreseeable impact in conjunction with other evidence or surrounding circumstances in order to determine whether the challenged decision was intentionally segregative. Thus, while a presumption of intent does not automatically flow from evidence of foreseeability, an inference of intent may be appropriate where a foreseeably segregative decision is made despite the existence of less segregative alternatives which were consistent with the educational objectives or policies of school officials or were even more in keeping with these goals or policies. See Arthur v. Nyquist, supra, 573 F.2d at 142;
United States v. Board of School Commissioners of Indianapolis, 573 F.2d 400, 413 (7th Cir.), cert. denied, 439 U.S. 824, 99 S. Ct. 93, 58 L. Ed. 2d 116 (1978); Penick v. Columbus Board of Education, 429 F. Supp. 229, 240-41 (S.D.Ohio 1977), aff'd in part and vacated in part, 583 F.2d 787 (6th Cir. 1978), aff'd, 443 U.S. 449, 99 S. Ct. 2941, 61 L. Ed. 2d 666 (1979); Berry v. School District of Benton Harbor, 494 F. Supp. 118, 123 (W.D.Mich. 1980). The lack of a persuasive or credible explantion for foreseeably segregative conduct of school authorities may also justify an inference that such conduct was intentionally segregative. See United States v. Texas Education Agency, 600 F.2d 518, 528-29 (5th Cir. 1979); Arthur v. Nyquist, supra, 415 F. Supp. at 939-41; Berry v. Benton Harbor, supra, 494 F. Supp. at 123. A consistent pattern of foreseeably segregative decisions may also suggest that the resulting segregative consequences were intentional, rather than accidental or unavoidable, in nature. See Parent Association of Andrew Jackson High School v. Ambach, supra, 598 F.2d at 713; United States v. Board of School Commissioners of Indianapolis, supra, 573 F.2d at 412. In short, the Court must examine all the relevant facts and circumstances surrounding the foreseeably segregative decisions of school authorities in order to determine whether a finding of segregative intent is warranted.
As noted previously, foreseeable segregative impact is not the only evidence upon which a finding of segregative intent may properly be based. A court may also examine the historical background of decisions, the specific sequence of events leading up to such decisions, departures from normal procedural sequence or substantive criteria normally considered important by the decisionmaker; contemporaneous evidence concerning the decisionmaking process; or the testimony of decisionmakers regarding the purposes of official acts. In addition, proof that officials were responsive to the discriminatory purposes of others in making a decision may be relied upon to establish segregative intent. See HOUSING II supra. If plaintiffs are successful in establishing their prima facie case of intentional segregation of Yonkers public schools, the burden is then on the defendant to establish that the same segregative conduct would have occurred "even had the impermissible purpose not been considered." Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 271 n.21, 97 S. Ct. 555, 50 L. Ed. 2d 450 (1977); see Brody-Jones v. Macchiarola, supra, 503 F. Supp. at 1238.
Third, the intentionally segregative conduct of school authorities must result in the creation or perpetuation of racial segregation throughout the school district; that is, the segregation must be systemwide. Plaintiffs need not specifically show, however, that every school or student was affected by the unlawful conduct of the defendant. Rather, plaintiffs must demonstrate that school authorities have effectuated an intentionally segregative policy in a meaningful or significant portion of the school system. Such proof creates a presumption that the racial segregation of the remaining segment of the system is not inadvertent, and places a burden of proof on the defendant to show that other segregated schools within the system are not also the result of intentionally segregative conduct. Keyes v. School District No. 1, supra, 413 U.S. at 208-11.
Considerable ambiguity exists as to the relevance of a school board's application of a neighborhood school assignment policy to its liability for school segregation. A number of courts have concluded that adherence to such a policy is not a per se violation of the Constitution. These decisions have observed that the appliction of such a policy is supported by a variety of nondiscriminatory considerations and therefore may generally be considered a permissible, albeit segregative, form of official action. See Keyes v. School District No. 1, supra, 413 U.S. at 245-48 (Powell,J., concurring in part and dissenting in part); Spangler v. Pasadena City Board of Education, 611 F.2d 1239, 1244-45 (9th Cir. 1979) (Kennedy,J., concurring); United States v. Texas Education Agency, 564 F.2d 162, 168-69 & n.9 (5th Cir. 1977), petition for rehearing denied, 579 F.2d 910 (5th Cir. 1978) (en banc), cert. denied, 443 U.S. 915, 99 S. Ct. 3106, 61 L. Ed. 2d 879 (1979); NAACP V. Lansing Board of Education, supra, 559 F.2d at 1049; Deal v. Cincinnati Board of Education, 369 F.2d 55, 60 (6th Cir. 1966), cert. deined, 389 U.S. 847, 88 S. Ct. 39, 19 L. Ed. 2d 114 (1967); Brody-Jones v. Macchiarola, supra, 503 F. Supp. at 1247. Thus, a school district with no prior history of de jure segregation is not required to abandon its neighborhood school policy merely because adherence to such a policy results in the perpetuation of segregated schools. See Diaz v. San Jose Unified School District, supra, 733 F.2d at 664.
It is also apparent, however, that the mere invocation of the neighborhood school policy as a defense to a school desegregation lawsuit is not dispositive of the liability determination. Instead, a school board's alleged application of and adherence to a neighborhood school policy must be examined in the context of other official acts and omissions in order to determine whether the policy exists and is in fact free of segregative purpose or intent. Among the most relevant factors to consider is the extent to which the neighborhood school policy is applied in a consistent manner; for example, the use of optional or non-contiguous attendance zones or out-of-district student transfer policies has been relied upon as evidence that a neighborhood school policy is either non-existent or sufficiently marked by segregative exceptions so as to be an implausible explanation for school segregation. See Columbus Board of Education v. Penick, supra, 443 U.S. at 461-42 & n.8-9; Arthur v. Nyquist, supra, 573 F.2d at 145 n.21; NAACP V. Lansing Board of Education, supra, 559 F.2d at 1056-57; Armstrong v. O'Connell, 451 F. Supp. 817, 829-30 (E.D.Wis. 1978); Berry v. Benton Harbor, supra, 442 F. Supp. at 1325-26. In rejecting the neighborhood school policy defense, courts have also relied upon a school board's selection of segregative student assignment or school construction policies where less segregative alternatives were available which could have been implemented without violating the district's neighborhood school policy. See Diaz v. San Jose Unified School District, supra, 733 F.2d at 665. Finally, a number of courts have held that a school district's adherence to a neighborhood school policy is constitutionally unacceptable where discriminatory public housing practices have contributed to the racial segregation of the neighborhoods, a conclusion we will explore further in our Conclusions of Law. See SCHOOLS VI.B.1.c infra. In short, a full examination of the facts and circumstances surrounding a school board's formulation of an adherence to a neighborhood school policy is appropriate in determining whether the segregative impact of such a policy is the result of impermissibly discriminatory intent.
III. THE YONKERS PUBLIC SCHOOL SYSTEM
The Yonkers School District and Yonkers Board of Education were established in 1881. GX 125. The Yonkers School District is coterminous with the geographic boundaries of the City of Yonkers. According to state law, the Board is an independent municipal corporation subject to the control of the New York State Board of Regents and the Commissioner of Education. N.Y.Const., Art. 5, § 4; N.Y. Educ. Law §§ 305, 2551 (McKinney 1970). The Board is an agent of the state and is charged with the responsibility of providing education for public school children in the city. The Board consists of nine members who are appointed by the Mayor for five year staggered terms of office. Among the Board's powers is the authority to hire the Superintendent of Schools, the school district's chief administrative officer.
The Superintendent and his or her administrative staff are often involved in the development and implementation of policies affecting school construction and closings, the setting and changing of attendance zone lines, grade structure, personnel policies, and other educational matters. The Board is ultimately responsible for determining and approving the policies of the school district with respect to the aforementioned matters.
The City of Yonkers also has specific legal powers relating to the operation of the Yonkers public schools. Under state law, the Yonkers City Council is empowered to appropriate an annual budget for the school district. The Mayor of Yonkers is also responsible under state law for appointing members of the Board of Education. City officials also have participated in the selection of sites for the construction of schools and in a variety of other educational matters. The manner in which these legal responsibilities and participating roles have in fact been exercised and the resulting impact on the Yonkers public schools will be explored further in our discussion of the City's liability for the racial segregation of the schools.
The segregation of the Yonkers public schools is best understood against the backdrop of the demographic changes occurring in the city and the Board's role in minimizing and exacerbating these trends. To a large extent, the development of the racial segregation in the Yonkers public schools has reflected the residential segregation of geographic areas surrounding these schools. We have previously described in some detail the demographic development of the city, see HOUSING I supra, and we incorporate that discussion herein. We will discuss the development of the district's school system and its increasing racial segregation in further detail as part of our findings regarding school openings and closings and school attendance zone changes. See SCHOOLS IV.A.1 infra.
As an initial matter, it is helpful to understand the geographic, structural, numerical, and other characteristics of the Yonkers public schools.
As of the 1980-81 school year, the Yonkers public school system was comprised of twenty-three elementary schools, two combined elementary/middle schools, four middle schools, and five high schools. The elementary schools consist of grades K-6, with three schools enrolling a small number of pre-kindergarten (pre-K) students as well.
Two schools, Emerson and Twain, contain students from grades K-8. (The elementary school portion of Twain is also referred to as School 11; the elementary portion of Emerson is also referred to as School 34). The middle school portions of these schools draw students from elementary school attendance areas other than that of their respective elementary school components. The five high schools consist of four general academic high schools and the Saunders Trades and Technical High School, a districtwide vocational and technical school in Central Yonkers. The district also operates a Career Center for high school students and post-graduate individuals, offering various occupational education programs. SB 746, at 114.
Most of the district's schools also enroll students who have been assigned to one of the district's Special Education programs. The attendance zone maps for the Yonkers public schools are included as Appendix B, C and D to this Opinion. See SB 626-628. The school zone boundaries reflect those in existence as of the 1980-81 school year.
The decline in white population in Yonkers and the simultaneous rise in minority residents has been reflected in public school enrollments as well. This phenomenon is reflected in the following table:
Yonkers Public School Student Population
% White Minority
% Minority Total
1967 25,875 85 4,421 15 36,296
1970 25,049 82 5,583 18 30,632
1975 21,514 72 8,195 28 29,709
1980 13,840 63 8,023 37 21,863
GX 64. Thus, from 1967 to 1980, the district's white student enrollment declined by over 12,000, or 47%; minority student enrollments rose by over 3,600, or 81%.
The decline in white student enrollment during the 1970's is also reflected in the non-public school enrollments during this period of time:
Yonkers Non-Public School Student Population
Year White % White Minority % Minority Total
1969 10,011 94 612 6 10,623
1970 9,291 93 706 7 9,997
1975 7,071 88 970 12 8,041
1980 6,149 79 1,654 21 7,803
SB 98. As these figures reflect, the non-public school white student enrollment has decreased at a slower rate than for public schools, while the non-public school minority enrollment has increased at a far more rapid rate. White student enrollment has declined by almost 4,000 students, or 39%; minority student enrollment has increased by just over 1,000 students, or 170%.
The general decline in student enrollment is reflected in attendance figures for individual public schools as well. From 1973 to 1980, only five of the district's 25 elementary schools experienced an increase in enrollment -- Schools 10, 18, 19, 23 and 27, all in Southwest Yonkers. On the secondary school level, only two schools have experienced increases in student enrollment during this period -- Saunders, primarily because of its 1980 relocation to the recently built Burroughs facility; and Yonkers High School, which was relocated in 1974 to a newly constructed facility and enrolls students from the School 10, 18, 19, 23 and 27 attendance zones.
The extent to which a school system is racially segregated can be determined by examining a number of factors: the racial composition of each school's student body, the racial composition of the school's faculty and staff, and community's and school administration's perceptions or attitudes toward the schools, and the physical characteristics of the schools. Keyes v. School District No. 1, supra, 413 U.S. at 196; Berry v. Benton Harbor, supra, 442 F. Supp. at 1298. An evaluation of these criteria reveals that the racially segregated nature of the Yonkers public schools is systemwide.
By 1980-81, the school year in which this suit was filed, the segregated nature of the Yonkers public schools' student enrollment was clear. The following represents the racial enrollment date for the district's twenty-five elementary schools, six middle schools and five high schools:
School Location White Minority Total
5 Central 373 (90%) 42 (10%) 415
6 SW 4 (21%) 219 (98%) 223
8 NE 307 (99%) 2 (1%) 309
9 SW 150 (37%) 254 (63%) 404
10 SW 45 (10%) 416 (90%) 461
11(Twain) SE 440 (96%) 18 (4%) 458
13 SW 503 (62%) 307 (38%) 810
14 SE 393 (96%) 16 (4%) 409
16 NW 235 (90%) 27 (10%) 262
17 SE 255 (98%) 8 (2%) 263
18 SW 177 (25%) 519 (75%) 696
19 SW 96 (19%) 400 (81%) 496
21 SE 381 (94%) 23 (6%) 404
22 NW 222 (90%) 24 (10%) 246
23 SW 366 (55%) 303 (45%) 669
25 NW 39 (12%) 276 (88%) 315
26 NE 249 (94%) 15 (6%) 264
27 SW 206 (43%) 278 (57%) 484
28 NE 257 (95%) 14 (5%) 271
29 NE 252 (98%) 6 (2%) 258
30 SE 316 (93%) 25 (7%) 341
31 NE 155 (79%) 41 (21%) 196
32 NE 237 (93%) 19 (7%) 256
King SW 14 ( 2%) 554 (98%) 568
34(Emerson) NW 223 (90%) 25 (10%) 248
TOTAL 5,895 (61%) 3,831 (39%) 9,726
School Location White Minority Total
Emerson (7-8) NW 301 (63%) 178 (37%) 479
Fermi (6-8) SW 134 (38%) 221 (62%) 355
Hawthorne (7-8) SW 222 (31%) 493 (69%) 715
Longfellow (6-8) SW 13 ( 6%) 216 (94%) 229
Twain (7-8) SE 646 (96%) 27 ( 4%) 673
Whitman (7-8) NE 604 (94%) 35 ( 6%) 639
TOTAL 1,920 (62%) 1,170 (38%) 3,090
School Location White Minority Total
Gorton NW 634 (53%) 573 (47%) 1,207
Lincoln SE 1,599 (98%) 38 ( 2%) 1,637
Roosevelt NE 1,388 (91%) 134 ( 9%) 1,522
Saunders Central 733 (84%) 144 (16%) 917
Yonkers SW 875 (38%) 1,422 (62%) 2,297
TOTAL 5,269 (70%) 2,311 (30%) 7,580
SUBTOTAL, ALL SCHOOLS 13,084 (64%) 7,312 (36%) 20,396
Special Education 666 (53%) 583 (47%) 1,249
Pre-kindergarten 46 (51%) 44 (49%) 90
Career Center 39 (38%) 64 (62%) 103
TOTAL, ALL SCHOOLS 13,840 (63%) 8,023 (37%) 21,863
Thus, in 1980, nineteen out of twenty-five elementary schools were over 80% white or 80% minority. Almost one-half of the elementary schools' minority enrollment -- 1865 students, or 49% -- attended five schools in West Yonkers. Three of these schools were at least 90% minority; the other two -- Schools 19 and 25 -- were 81% and 88% minority, respectively. Over 70% of the district's white elementary school students attended schools with at least 90% white students.
Racial imbalance among the district's secondary schools, while not as stark as on the elementary school level, was nevertheless clear for the majority of these schools. The two East Yonkers middle schools, Twain and Whitman, had between them only sixty-two minorities among their 1,312 students, or 5% of the district's minority middle school enrollment; the district's three Southwest Yonkers middle schools, Fermi, Hawthorne and Longfellow, each were at least 62% minority and enrolled 79% of the district's minority middle school students. Only one middle school -- Emerson Middle School in Northwest Yonkers -- can be characterized as a racially balanced school.
The district's regular high schools followed a similar pattern of racial imbalance. Lincoln and Roosevelt, the two East Yonkers High Schools, enrolled 8% of the district's minority high school students. Yonkers High School, a 62% minority school in Southwest Yonkers, enrolled 62% of the district's minority students; along with Gorton, the two West Yonkers high schools enrolled 92% of the district's regular minority high school students.
In sum, 64% of the district's white students were enrolled in schools of at least 90% white students, while 28% of the district's minority students were enrolled in schools with at least 80% minority enrollment. While some schools, such as School 13 (38% minority), School 23 (45%), School 31 (21%), and Emerson Middle School (37%) fairly reflect the racial population of Yonkers and the school population in particular (37% minority), most schools in the district are identifiably white or minority based on the factors discussed above. Cf. Oliver v. Michigan State Board of Education, supra, 508 F.2d at 183.
Other attributes of the Yonkers public schools also serve to delineate them as racially identifiable. The racial imbalance of the school district's faculty and administrative staff is similar to the imbalance in student enrollments in its pattern of racial imbalance at all grade levels of the school system. As set forth in more detail later in these findings, the bulk of the district's minority staff members are assigned to schools with predominantly minority student enrollments. Many of the district's predominantly white schools, on the other hand, have few, or in some cases, no minority staff. While this disproportion has been reduced somewhat in recent years, the racial imbalance is still significant. See SCHOOLS IV.E infra.
The differences in the physical facilities of Yonkers public schools also adds to the racial identifiability of the school system. As will be discussed in greater detail, the predominantly minority elementary schools are generally smaller, have less recreational space, and are generally characteristic of the minority, more urban character of Southwest Yonkers. See GX 1005. Middle schools with predominantly minority student bodies are significantly older, more limited in site size and recreational facilities, and similarly reflect their predominatly minority urban surroundings. Differences in the district's high school facilities, while considerably less drastic than on the elementary school level, are nevertheless detectable. See SCHOOLS IV.B.1 infra.
The community's and school officials' perceptions of the Yonkers public schools also support our finding that the Yonkers public school system as a whole is racially segregated. The racial identifiability of these schools generally reflects the demographic makeup of the communities in which these schools are situated, particularly at the elementary school level where neighborhood school assignments are largely responsible for this correlation. The evidence demonstrates that community had administrative personnel generally associate schools in Southwest Yonkers as minority schools, particularly Schools 6, 10, 18, 19, and King, which have long been considered minority schools. The only three exceptions to the general correlation of geographic location and racial identifiability are School 13, a 38% minority school located in the Southeasternmost section of Southwest Yonkers (an historically white area); School 23, a 45% minority school, located north of School 13; and School 25, an 88% minority school abutting the Hudson River in Northwest Yonkers. Even Schools 13 and 23 are identifiably minority to the extent that they border on elementary school zones for School 21 (6% minority) and School 17 (2% minority), and to the extent that the School 23 zone includes a large identifiably minority subsidized housing project (Whitney Young Houses). School 25 is located within a narrow strip of land which, along with Runyon Heights, has historically been more heavily populated by minorities than any other area outside of Southwest Yonkers. The school's enrollment consists in part of students from the Seven Pines subsidized housing project and abuts the School 16 (10% minority) zone, an area which has long been an identifiably white school zone.
On the secondary school level, the pattern is somewhat less consistent but nevertheless clear. Longfellow has long been considered a minority school, with Hawthorne and Fermi more recently gaining this general reputation despite the fairly even balance among white, black and hispanic students at each of these schools. The district's high schools fall within a similar pattern. Although some black community members consider Yonkers High School (62% minority) to be in integrated school, Ryer Dep. 29; see also Tr. 12,912-13 (Dodson), it is nevertheless clear to the Yonkers community that Yonkers High School and Gorton High School are the two high schools in which the vast majority of the city's minority students are enrolled. Yonkers High School receives students from the School 10, 18, 19 and King elementary school zone; Gorton receives students from the School 6, 25 and King zones and was considered a school marked by racial disturbances and minority identifiability even prior to achieving its predominantly (i.e., over 50%) minority status in 1982. Tr. 5505-06 (Minervini); see SCHOOLS IV.F.2 infra. In sum, community and school administration perceptions are consistent with the other indicia of racial segregation which exist in the Yonkers public school system.
In order to properly evaluate many of the acts and omissions of the Board with respect to student assignment policies and other enrollment-related practices, it will be necessary to refer to numerical evidence of school capacity. The available capacity data for presently operating and previously closed public schools are summarized in Appendix E to this Opinion. As these figures reflect, significant variations among the particular sources of capacity data are generally the exception rather than the rule. In analyzing the feasibility of particular courses of action, we will note these variations (for example, by giving a range of capacity figures and the source of these figures) to the extent applicable.
The Yonkers public school system has undergone many grade reorganizations throughout its history, particularly in recent years. Originally organized in a K-8, 9-12 fashion, the district gradually moved toward a more typical elementary-middle (or junior high
)-high school structure subsequent to the creation of eight middle school attendance zones in 1938. Some facilities, such as Schools 16, 25 and 27 in West Yonkers and Schools 4, 5, 8, 11, 14, 15 and 17 in East Yonkers, continued to serve both elementary and middle school students until the 1950's and early 1960's, when additional middle schools such as Lincoln, Gorton and Whitman were constructed and expanded. By 1967-68, the district was organized primarily in a K-6, 7-9, 10-12 pattern.
Since 1967, the district's grade structure has undergone considerable change. The opening of King Intermediate School in 1969 brought about the district's first 4-6 school, and with it a number of K-3 feeder schools. By 1972, the K-5 elementary school was introduced and eventually became the district's most common grade structure when the Board adopted Superintendent Robert Alioto's 1973 school reorganization recommendations. The stated reasons for recommending implementation of a K-5, 6-8, 9-12 grade structure were the fewer discipline problems and increased opportuinties for education innovation and individualized instruction at the elementary school level, and the closer intellectual, physical, psychological and social resemblance between sixth and seventh graders than between fifth and sixth graders. Before this pattern became even nearly uniform, however, the city's fiscal crisis and change in superintendents led to a reformulation of grade structure. As part of the 1977 Phase II school reorganization proposal, Superintendent Joseph Robitaille and his staff recommended the adoption of a K-6, 7-8, 9-12 grade structure. This recommendation was based on a variety of factors: more efficient space utilization; increased teacher and parent involvement; the fiscal savings of providing education to sixth graders in elementary, rather than middle, schools; and the emotional, physical, psychological and educational features of eleven-year olds. This proposal was adopted in 1978 and was fully implemented at the elementary school level by 1980 and at the secondary school level by 1981.