policy, planning, and the courts

They have no lawyers among them, for they con- sider them as a sort of people whose profession it is to disguise matters.

SIR THOMAS MORE

Of Law and Magistrates

Judicial Review I S 7 0

POLICY, PLANNING, AND THE COURTS

Sheldon J. Plager

The role of the courts in defining, refining, and confining planning law and public policy is explored in this review of recent cases. Among the important concepts discussed are granting citizens “standing” to bring suit against public agencies, the use of referenda as a form of majority tyranny in housing discrimination cases, the embodiment of racist objectives in local ordinances, the practice of conditional or “contract” zoning, and the clarification of tenants’ rights in public housing disputes.

Sheldon J. Plager is a Professor of Law at the University of Illinois in Champaign where he teaches courses in urban problems and land planning and in environmental law. He has reviewed planning law cases in this Journd for the past three years.

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The ease with which planning law some- times disguises itself as a form of rational decision- making cannot be wholly ascribed to either the mysticism of planning or the myopia of law. Both are entitled to full credit. The reader may determine for himself whether this observation is supported by the cases decided in 1970. This annual review, as in past years, attempts to identify those current cases in the fields of urban planning and planning law which, in the reviewer’s judgment, are indicative of significant trends or developments, are particularly interesting and maybe even inform- ative, or raise basic issues worthy of continued examination. Outstanding examples, good and bad, will be chosen to receive the customary awards of this judicial reviewer-plaudits to the court that produces the best opinion of the year and suitable recognition for the most successful disguise of an important issue.

AIP JOURNAL MAY 1971

Planning and Citizen Participation The question of citizen participation in the urban planning process has come in the courts to revolve around certain key legal issues. One of the most important concerns the legitimacy of citizen pro- tests of public actions, as expressed in the concept of “standing” to bring suit. This issue was raised in Coalition for United Community Action v. Rom- ney.’ In 1968, the city of Chicago received a $200,000 Model Cities grant for the purpose of planning and developing a comprehensive city demonstration program. In 1969, after review by the Federal Regional Coordinating Committee and some revision, the Chicago plan was approved by the Secretary of Housing and Urban Development. An assistance grant of $38,000,000 for the first year was made. Shortly after, community legal counsel, on behalf of a group of community organizations calling themselves “Coalition for United Community Action,” brought suit against the Sec- retary of HUD to enjoin him from continuing to provide funds to Chicago under the Model Cities Act. The primary basis for the plaintiff‘s complaint was that Secretary Romney had approved the Chi- cago Model Cities program even though it was prepared and submitted by the city without “widespread citizen participation” in its planning. Issues were also raised regarding the adequacy of the relocation plan, and whether the data used were as current and complete as required by certain agency regulations.

The government responded with a motion to dismiss the complaint on the grounds that a suit against Secretary Romney was a violation of sovereign immunity; that discretionary acts of officers of the United States are not subject to review; that the city of Chicago should have been made a defendant; and that in any event the plaintiffs had no standing to bring the suit. The case was heard before Judge Austin, the same judge who decided Gautreaux v. Chicago Housing Authority,2 in which the Chicago Housing Authority was found to have engaged in discriminatory racial policies in the selection of site locations.

The court quickly disposed of several of the government’s arguments. Judge Austin read the complaint as alleging that Secretary Romney had not merely acted erroneously, but that he had acted arbitrarily and capriciously beyond his statutory authority. In such case, said the judge, the doctrine of sovereign immunity would not apply.

JUDICIAL REVIEW: PLAGER

Further, the court found no basis for concluding that Congress intended that the Secretary’s approval of plans should eliminate any right to judicial review.

Probably the most difficult question for the court was the question of whether the plaintiffs had standing to bring the action. As the government pointed out, the plaintiffs were not a party to the federal contract, they were not recipients of any federal grants, and they appeared to stand in no better position than any other member of the public. The court observed that, quoting from a United States Supreme Court case, standing is one of “the most amphorous [concepts] in the entire domain of public law.”3 After reviewing recent federal cases on the standing issue,4 the court concluded that plaintiffs were entitled to raise the issue of citizen participation in the planning process:

The statutory scheme of the Model Cities Act is premised on the citizen’s involvement in all phases of the comprehensive program. It as- sures that no plan will be formulated and no action thereunder commenced except as there is “widespread citizen participation.” It sought by this phrase to have the area resident not only advised and aware of the steps being taken to improve the quality of his urban area, but also gave him the opportunity to voice his views and to be involved in the plans for his neighborhood. HUD itself in its Policy Statement on such participation stated that “improving the quality of life of the residents of the model neighborhood can be accomplished only by the affirmative actions of the people themselves. CDA Letter 3 , 11/30/1967, Stip. Ex. 2. Congress recognized that area residents have that personal stake which demands involvement in any Plan whose objectives are to benefit him and the city through the Model Cities goals for better housing, employment, education, health, police protection, etc. and that the Model Cities Act was not merely to create sterile improvements of physical conditions of the neighborhood.

The only effective means which plaintiffs have to assure citizen participation is to challenge the efficacy of the plan which, as they allege, excluded them. They are within the zone of interests protected by the Model Cities Act, and as residents of the area are within the class of persons which the statutory provision was designed to protect.’

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The government’s motion to dismiss was denied, and the case ordered for trial on the merits.

AN EXCESS OF PARTICIPATION

Too much citizen participation was the charge in North City Area-Wide CounciZ v. Romney.6 In- volved was the proposed Model Cities program of the city of Philadelphia and the role of the North City Area-Wide Council, Inc. (AWC) in both operation and evaluation of the program. AWC was organized in the target area from a large number of existing organizations to provide the local “citizen participation” in the Philadelphia program, as required by the Demonstration Cities and Metropoli- tan Development Act of 1966.7

After more than a year of extensive planning by, and consultation between, the city and AWC, the city submitted to the Secretary of HUD an applica- tion for a grant to implement a Model Cities program in the target area. A large portion of the program was to be administered by seven non- profit corporations. A majority of the directors of four of the corporations, and at least sizable minorities of the directors of the other three corporations, were to be chosen by AWC. A central aim of the Philadelphia program was to provide the residents with an opportunity to participate fully in city decisions affecting their area and to assume some control over their own economic resources. HUD rejected the proposed program because AWC’s role was considered excessive. The city submitted a supplementary statement substantially re- ducing the operational role of the AWC and established as new policy that AWC would be permitted to nominate only one-third of the directors of the new corporations. HUD approved the city’s amended proposal, but unilaterally added two more restrictions to AWC’s participation: no member of the board of directors of the operating corporations may be a member of AWC after the first year of operations, and, after the first year, no board member may be selected by AWC.

Neither AWC nor other local citizens groups were consulted in the development of either the city’s supplementary statement or the new HUD conditions. In view of this development, AWC refused to continue to serve as the citizen representa- tive for the program; upon acceptance by the city of a one-year grant from HUD in excess of $3,000,000 to implement the Model Cities program, AWC brought suit to enjoin HUD and the city from proceeding further until the legality of

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the actions taken by the city and HUD was determined.

The district court dismissed the complaint on motions for summary judgment by the city and HUD, on the ground that the plaintiffs lacked standing to sue, and, further, even if the plaintiffs had standing, neither the city nor the Secretary had violated either the Model Cities Act or HUD regulations.

On appeal to the Court of Appeals, Third Cir- cuit, the government did not press the standing issue, in recognition of the newly developed doctrines granting standing to citizens to challenge a wide array of governmental action; AWC was deemed by the court to have standing, citing Judge Austin’s opinion in Coalition for United Commun- ity Action.’

A number of cases arose . . . dealing with the efforts of white America to build middle class enclaves free from intrusion by the poor and the black.

The government did argue that this was not a matter for judicial review, since it was basically a question of agency action committed to agency discretion by law. The court rejected this argument, pointing out that the question was whether the administrative agency conformed with the statutory requirements. This question was a proper subject for judicial review. The court held that decisions which change the basic strategy of a Model Cities program do require full citizen participation and the decision by the city to severely limit the participation of AWC and the conditions imposed by HUD, were fundamental changes in the Philadelphia program. Accordingly, the Secretary violated the Model Cities Act when he accepted the city’s proposal for major modification of the program, with no citizen participation in its formulation, and when he imposed additional significant terms of his own, again without citizen consultation. The judgment of the district court was reversed, and the case was sent back for further proceedings.

Unwanted citizen participation was also the issue in an unusual Vermont case, Brewster v. Mayor of City of Rutland.’ The city of Rutland, the Rutland Housing Authority, and the Depart- ment of Housing and Urban Development agreed


that there was a need for low-income housing in the Rutland area. During the early part of 1970, the decision was made to obtain a site for a sevent y-five-unit low-income housing project. In April, a site was located, and public announcement was made of the project and its location. Appar- ently there was no public involvement in the process of deciding where the site for the project was to be, and the decision-making process by which that decision was made was not publicly announced.

Shortly after the announcement, a substantial number of citizens-approximately 20 percent of the voters at the preceding annual election-signed and delivered a petition to the city clerk’s office requesting a special meeting on the appropriateness of placing the project on a single site in one section of the city. The city charter provided that special meetings of all legal voters of the city should be called by the mayor on the petition of not less than 5 percent of the legal voters voting at the last preceding election. The mayor refused to call a special meeting. The petitioner filed a writ of mandamus, a procedure for ordering a public official to take action required by law.

. . . the newly developed doctrines granting standing to citizens to challenge a wide array of governmental action.

The Vermont Supreme Court took the position that the results of the proposed special meeting would be advisory, and not binding on city officials. This was because the Rutland Housing Au- thority was not a department of city government, but a separate corporate body, not subject to the special meeting provisions governing the activity of the city council. Under these circumstances the court held that a writ of mandamus would not issue when the effect would be “nugatory and serve no lawful purpose.” It is interesting to note that the local legal aid group, often found repre- senting citizens groups in actions against city government unresponsive to citizen concerns, appeared as amicus curiae on the side of the mayor urging that the petition be dismissed.

Discrimination in Planning and Zoning A number of cases arose during 1970 dealing with the efforts of white America to build middle class

enclaves free from intrusion by the poor and the black.

REFERENDA AND “MAJORITY PARTICIPATION”

In 1960, Union City, California, had a population of about 6,600. The area was largely agricultural, and a majority of the residents were Mexican- Americans. During the decade of the ’~O’S, the population of Union City more than doubled to its current 14,000, absorbing residents both from Oakland to the north and San Jose to the south. The composition of the population changed-the Mexican-American percentage declined to about 35 to 40 percent of the total. A significant amount of this new growth took place in the form of multifamily housing on land rezoned from the agricultural holding classification applied to most of the vacant land in 1962.

In 1967, city officials contracted for a comprehensive study of local housing requirements. Al- though the final plan was still incomplete at the time the case of Southern AZameda Spanish Speak- ing Organization (SASSO) v. City of Union City’ ’ arose, a number of recommendations had been developed, including a draft master plan. The planners recommended that the city encourage housing projects for families with low and moderate incomes, which would be sponsored by non- profit corporations and financed through federal aid.

In December 1968, SASSO, qualified to sponsor federally assisted housing developments for low- income persons and organized for the purpose of improving housing and living conditions for the Spanish speaking people of Southern Alameda County, obtained an option to purchase a tract of land. The projected master plan designated the tract for multifamily dwellings. SASSO intended to construct a 280-unit medium density housing project. It applied to the city planning staff for rezoning to multifamily residential. After appropriate studies, the planning staff recommended the rezoning to the planning commission. The planning commission’s recommendation for rezoning to medium density multifamily residential was approved by the city council after public hearings; the ordinance was adopted in 1969.

Shortly thereafter the owners of several single family homes adjacent to the tract in question, along with other homeowners, circulated a petition seeking a referendum under California law. Pur- suant to the governing statute, the matter was

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submitted to the voters of Union City who, by a vote of 1,149 to 845, rejected the ordinance. The effect of this referendum was to automatically restore the tract to the agricultural holding cate- gory and to bar the city council from rezoning the tract for a period of one year.

SASSO then sued in the federal district court, attacking the referendum and its results as infring- ing upon their constitutional rights under the due process and equal protection clauses of the Four- teenth Amendment. SASSO sought an injunction directing Union City to implement the zoning change notwithstanding the referendum. Once in the district court, plaintiff SASSO moved for an order convening a three-judge court to entertain their constitutional claims, and for a preliminary injunction directing the defendant city to put the zoning changes into effect pending a final hearing on the merits. The district court ruled against the plaintiff on both motions. Plaintiff appealed the order of the district court denying the three-judge court to hear the constitutional claim and the preliminary injunction. On appeal, the Court of Appeals for the Ninth Circuit upheld the district court’s orders.

The court held that decisions which change the basic strategy of a Model Cities program do require full citizen parficipation . . .

The appeals court rejected SASSO’s argument that referendum zoning violates due process requirements. The court distinguished cases in which local ordinances had been struck down when they permitted residents of a neighborhood, by majority vote or by withholding consent, to impose restrictions that otherwise had not been legislatively determined to be in the public interest.’ Here, said the court, the referendum was “far more than an expression of ambiguously founded neighborhood preference. It is the city itself legislating through its voters-an exercise by the voters of their traditional right through direct legislation to override the views of their elected representatives as to what serves the public interest.” The court cited with approval the case of Raniel v. City of Lansing,’ discussed in last year’s Judicial Review,’ in which the Sixth Circuit Court of Appeals took the position that holding a referendum under circum-

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stances similar to those in Union City was essentially a neutral act.

SASSO argued further that the purpose and result of the referendum was to discriminate racially and economically against the Mexican-American residents of Union City, and that such discrimination violated their constitutional right to equal protection. The court distinguished between the motive of the voters in rejecting the rezoning and the effect of the rejection. Regarding the voters’ motive, the court took the position that the question of motivation for the referendum was not an appropriate question for judicial inquiry. As to the effect, however, the court noted that if the result of the rezoning by referendum was discriminatory in the sense that it denied decent housing and an integrated environment to low-income residents of Union City, such a denial would present a substantial legal question.

Given the recognized importance of equal opportunities in housing, it may well be, as a matter of law, that it is the responsibility of a city and its planning officials to see that the city’s plan as initiated or as it develops accom- modates the needs of its low-income families, who usually-if not always-are members of minority groups. It may be, as a matter of fact, that Union City’s plan, as it has emerged from the referendum, fails in this respect. These issues remain to be resolved.’

Nevertheless, concluded the court, the issues did not warrant a three-judge court, nor did they warrant the preliminary injunction requested by plaintiffs. The district court order was upheld, and the case remanded for trial on the merits.

On remand, the district court took the ruling of the court of appeals as settling the question of the legality of the referendum, but as posing the question of whether the effect of the referendum, apart from motivation, was to deny housing and an integrated environment to low-income residents of Union City. After two weeks of trial on this issue, the court concluded that the housing problem in Union City was not the result of actions taken by the government, either through its elected representatives or as a result of the referendum. The failure of the city to accommodate the housing needs of low-income families, concluded the court, was primarily the result of individual preferences and objectives of private residential tract developers, and, to some extent, the desires of private landowners- matters over which the city had little direct control. The court went further, however, and con-


cluded that if, within a reasonable time, the city failed to take all steps necessary and feasible under the law to accommodate the needs of its low- income residents, the existing housing situation could be expected to become such that failure or refusal to rezone a particular site for private developers of low-cost housing would become in effect a denial of the needs of the low-cost housing residents and a denial of equal protection of law. The court ordered the city to take such steps and suggested they should include:

. . . not only encouragement and if possible implementation of programs dependent on the initiative of private residential developers and upon the cooperation of private landowners or occupants, e.g., section 236 and 235 programs, the so-called 5 2 3 Alameda County Low-Cost Leasing Program and Hous- ing Rehabilitation Grant and Loan Pro am (including if possible implementation o r t h e SASSO Housing Section 236 Program either as now proposed or as modified) but also public housing programs requiring the exercise of the fiscal and eminent domain powers of the city if such be necessary and reasonably feasible under the law to accomplish the object of this order in the event that private initiative and landowner cooperation (over which admittedly the city has no control) are insufficient to reasonably accommodate the housing needs of low-income residents. . . .

The court gave the city a reasonable time, tentatively fixed as not later than May 1, 1971, for “accomodating to the housing needs of low-income residents.” The court further ordered the city to report in writing, regularly at three-month intervals, what steps have been taken to accomplish the object of the order.’

Should Union City’s government attempt to meet the requirements of the court’s order through the construction of public housing for low-income families it would find that under the California Constitution, public housing projects are automatically subject to referendum approval. Article 34 of the California Constitution provides that low-rent housing projects may not be undertaken by public agencies until a majority of qualified electors of the jurisdiction approve the project. In Va2tier-t-a v. Housing Authority of City of San Jose,” this provision was attacked on the grounds that it was violative of the provisions of the United States Constitution. The plaintiffs were persons alleg-


ing that they were eligible for public housing and had been placed on the appropriate waiting lists. They were unable to occupy public housing because at present none was available. Plaintiffs alleged that one reason why no housing was available was that Article 34 impeded the financ- ing of new housing, since only 52 percent of the referenda submitted to the voters for public housing projects were approved. Plaintiffs argued that, but for the existence of Article 34, local housing authorities would be able to apply for federal assistance if they chose; they further alleged that there was evidence that in fact they would so choose. Plaintiffs filed suit in the federal district court for an injunction prohibiting housing authority officials from complying with the referendum requirement. Since a state constitutional provision was being attacked on the ground of its repugnance to the equal protection clause of the United States Constitution, a federal three-judge court was convened.

The court noted that the substance of plaintiffs’ complaint was that the California constitutional provision applied to only low-income persons. In- voking a long line of United States Supreme Court

SASSO argued . . . that the purpose and result of the referendum was to discriminate racially and economically against the Mexican-American residents of Union City, and that such discrimination violated their constitutional right to equal protection.

decisions forbidding the unequal imposition of bur- dens upon groups that are not rationally differen- tiable in the light of any legitimate state legislative objective, the court declared:

The vice in this case is that Article XXXIV makes it more difficult for state agencies acting on behalf of the poor and minorities to get Federal assistance for housing than for state agencies acting on behalf of other groups to receive financial Federal assistance. In Cali- fornia, state agencies may seek Federal financial aid, without the burden of first submit- ting the proposal to a referendum, for all projects except low-income housing.’

The court gave urban renewal, hospitals, and col- leges as examples of other such projects. And even though federal assistance for state housing agencies need not be sought by California authorities, the

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requirements of equal protection must still be met. The three-judge court held Article 34 to be unconstitutional and granted plaintiffs their injunction. The United States Supreme Court has noted prob- able jurisdiction, indicating that a high court decision on the issue is 1ikely.l

PLANNING AND RACISM

In a case that involved housing, a federal district court looked behind a New York municipality’s professed concern for adequate sewerage and park and recreation needs and found blatant racism.2o The city of Lackawanna, New York, was historically a racially separate community. Blacks were concen- trated in the highly industrialized and polluted first ward, while whites lived in the second and third wards. The third ward had a constantly increasing white population due in part to recently con- structed subdivisions approved by the city during the past ten years. These approvals were granted in spite of the city’s awareness of inadequate sewer services and the desire of citizens for more park and recreation areas.

In 1968, a low-cost housing corporation was formed. The corporation apparently entered into an agreement with the Bishop of the Catholic dio- cese to purchase a tract of church land in the third ward for the purpose of building a low-cost subdivision. The subdivision would presumably provide an alternative to first ward housing for blacks.

. . . the existing housing situation could be expected to become such that failure . . . to rezone a particular site for private developers of low-cost housing would become . . . a denial of equal protection of law.

A petition opposing the project was signed by many third ward residents and sent to the Bishop. The city’s planning and development board, the zoning board of appeal, and city officials also responded. First, the city council enacted an ordinance placing a moratorium on subdivision construction; the main reasons given were sewer needs, park and recreation needs, and flooding problems. Then, the tract of land involved was rezoned for park purposes, despite the fact that the planning and development board had earlier designated it for residential use, and no one had recommended that it be used for park purposes either before or after enactment of the ordinance. Furthermore,

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the master plan of the city discouraged any additional residential construction in the highly industrialized and congested first ward and encouraged construction in the third ward. Finally, city officials expressed interest in acquiring the tract for the purpose of building park and recreation sites, despite the fact that the major portion of the area did not lie within the flood plain within which the master plan recommended that parks be built.

In a suit brought by the housing group against the city, the district court, after finding the above facts, concluded: “this court finds that the facts show a willful contrivance by city officials to de- prive Negroes of their housing rights under the Equal Protection Clause.”

In Phillips v. Village of Libertyuille,z’ one of the advocates of a new fair housing law for Liber- tyville, Illinois, brought suit to invalidate certain provisions contained in the version enacted by the village. The ordinance as finally adopted included a number of limiting provisions. Among them was a requirement that membership on the Human Rela- tions Commission was open only to property owners in Libertyville. Plaintiff, a resident and elector of the village for the past seven years, lived in a rented apartment.

Defendant village moved to strike certain por- tions of the complaint and to dismiss the complaint on the grounds that the plaintiff did not have sufficient standing to bring the action. The trial court agreed with the defendant and dismissed the case. On appeal, the appellate court concluded that, but for the limiting provision of the Liberty- ville ordinance, plaintiff as an elector and resident would have been eligible under the Illinois Consti- tution and statutes to hold public office on the Human Relations Commission. Since persons cannot be barred from holding public office by criteria forbidden by the constitution, plaintiff had standing to challenge the constitutionality of the owner- ship requirement, and had sufficient personal stake in the outcome of the controversy to be entitled to judicial resolution of the issue. The decision of the trial court was reversed, and the case was remanded with directions to reinstate the complaint and con- sider the merits of the constitutional issues presented.

Under New Jersey law, a use variance can be granted upon an affirmative finding of “special reasons” “in particular cases,” together with a general finding that the granting of the use variance would not be detrimental to the public or substantially impair the purpose of the zoning ordinance.


In a New Jersey case of potential importance,22 the property involved was zoned single family residential. The city council, on recommendation from the Board of Adjustment, granted a use variance for a multifamily structure. The particular structure consisted of 146 units of cluster-type two- story apartments intended to house low-income blacks being displaced from another part of town by a renewal project. The area where the site was located was primarily white.

. . . a federal district court looked behind a New York municipality’s professed concern for adequate sewerage and park and recreation needs and found blatant racism.

The Board of Adjustment in recommending the

Without regard, however, to any official federal or state requirements, the board finds and concludes that the demand of public policy cannot be satisfied by continued confinement of non-white families in the Fourth Ward area, and that breaking the long-standing pat- terns of racial segregation in this city will promote the general welfare of the community.2

The board also noted that the program would serve to alleviate urban blight and generally promote the health and welfare of the city. The city council, in adopting the board’s findings, added a statement to the effect that the granting of the variance would result in a racially balanced housing program, and that freedom of choice of residents of the im- pacted area of the fourth ward to reside within or without the area in safe, decent, and attractive housing that they could afford served the community’s interest in achieving an integrated, just, and free society.

Plaintiffs, residents of the area, challenged these conclusions as being insufficient to constitute “special reasons” required by the state zoning enabling act for the grant of a use variance. The New Jersey Supreme Court upheld the trial judge’s conclusion that they were legally adequate. In a strong and forthright statement the Supreme Court declared:

We specifically hold, as matter of law in light of public policy and the law of the land, that public or, as here, semi-public housing accommodations to provide safe, sanitary and decent housing to relieve and replace substan-

grant of the use variance stated:


dard living conditions or to furnish housing for minority or underprivileged segments of the population outside of ghetto areas is a special reason adequate to meet the requirement of [the statute] and to ground a use variance.24

Two particularly interesting cases in this area were decided by the Supreme Court of Pennsyl- vania in 1970. The first, Appeal of Kit-Mar Builders, Inc.,2 challenged the validity of a township zoning ordinance requiring minimum lot sizes of no less than two acres along existing roads and no less than three acres in the interior. Kit-Mar entered into an agreement to purchase a 140-acre tract of land on which it desired to construct single family homes on lots of one acre. Upon being denied building permits because of the township’s minimum lot size requirement, Kit-Mar challenged in the courts the validity of the requirement. The Supreme Court of Pennsylvania held the requirement invalid. Said the court:

We decided in National L a n d 2 6 that a scheme of zoning that has an exclusionary purpose or result is not acceptable in Pennsyl- vania. We do not intend to say, of course, that minimum lot size requirements are inherently unreasonable. Planning considerations and other interests can justify reasonably varying minimum lot sizes in given areas of a community. . . .The two and three acre mini- mums imposed in this case are no more reasonable than the four acre requirements struck down in National Land. . . . Minimum lot sizes of the magnitude required by this ordinance are a great deal larger than what should be considered as a necessary size for the building of a house, and are therefore not the proper subjects of public regulations.2

The second case is Appeal of Girsh.2 The township involved had zoned approximately 75 percent of its land area single-family residential, and the remainder commercial and industrial. There was no provision for multifamily zoning. A developer bought a tract of land, zoned residential, on which he sought a building permit to construct two nine- story apartment buildings. When he was denied a permit, he attacked the ordinance as invalid. The Supreme Court of Pennsylvania agreed with him.

The question, said the court, was not whether the township could be compelled to zone all of, or even one particular piece of, its land to permit apartment development, but whether the township could refuse to have any apartment zoning whatever. Given the population trends away from

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urban centers and into the suburbs, the township could not choose to take only people who can live in single-family housing-in effect freezing the population at near present levels. The court noted in passing that its decision did not necessarily mean that a municipality must provide for all types of land use. “This case deals with the right of people to Ziue on land, a very different problem than whether [the township] must allow certain industrial uses within its borders.”

The opinions in Kit-Mar and Girsh were supported by three of the seven justices, less than a majority of the court. fourth justice, Chief Jus- tice Bell, concurred in $ 0th results, basing his concurrence primarily on the traditional ground that the objectionable zoning practice of the community denied the private property owner his constitutionally protected right to use his property as he saw fit. Three justices dissented, the same three justices in both cases. As the reporter in the Zoning Digest noted about these cases:3o

Girsh and Kit-Mar are highly significant opinions, raising and affirming the obligation of the state t o provide housing opportunities for all. However, only three members of the court have embraced this viewpoint. The Chief Jus- tice’s concurrence and the dissents were on other grounds. If the court were faced with this single issue, I cannot predict the outcome. The last case to be noted in this section is a

fifty-page opinion that can only be called remarkable. It begins:

If only Americans of color were able to ac- quire housing accommodations as easily as they can purchase Cadillacs, the occasion for cases such as this would surely be rare.3

The issues and the Ohio court’s treatment of them are too lengthy and too complex to detail here. In its simplest terms, the decision of Judge Hitchcock was to reverse a decision of the Board of Adjust- ment which had in turn affirmed action of the building zoning supervisor to deny a building permit for a twelve-building apartment complex. The effect of the court’s decision was to authorize the erection of the apartment complex, in which tenants were to be financed under the Rent Supple- ment Act of 1965.

The neighborhood in which the project was to be built was a generally white middle class neighborhood, which housed among others the planning director of the city. The neighbors and the planning director opposed the project. The court, after

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analyzing census figures and describing his own experience in the community-the judge was born and raised in the surrounding counties, concluded that “in view of the foregoing there can be no doubt that at present de facto housing segregation exists in Lima and Allen County.” In the light of this finding the court ruled that the city could not validly deny the developer the right to build his project. The court, in addition, prescribed a formula for residency of blacks and whites, based on population data and related factors, with which the property owner would have to comply.

In short, this court finds that the substance, the reason and the purpose of the Civil Rights Act justify the formulation and judicial approval of equitable housing quotas based upon or geared to census facts available to all where desired, and above all where believed necessary economically in order to cope with the usage of the community which would otherwise create a greater volume of dis~rimination.~

Urban Redevelopment A variety of issues involving urban redevelopment were litigated during 1970. In Fishman v. City of S t ~ m f o r d , ~ some unusual church-state questions were raised in an urban renewal context. The Ur- ban Redevelopment Commission (URC) of Stam- ford approved a redevelopment plan covering the entire downtown Stamford area, comprising about 130 acres. The plan as initially approved designated plaintiff‘s property, a quarter-acre tract, as “not to be acquired.” The church property adjacent to plaintiff‘s was also to be left unaffected, except that a portion of the church property was to become part of a moderate income housing project, but an equivalent portion of land was to be trans- ferred to the church in replacement. Subsequently the plan was modified to expand the number of housing units in the project. This required that additional land be taken from the church property. The URC determined that this additional land could be replaced by taking plaintiff‘s property and transferring that to the church.

Plaintiff brought suit t o prevent the URC from taking his land. The trial court rejected plaintiff‘s arguments, and plaintiff appealed, raising three issues: (1) if the URC sold the plaintiff‘s property to the church at the so-called “re-use price,” which would be lower than the price the church was paid for similar land sold by it to the URC, there would be a direct aid to religion which would violate the


establishment clauses of the First Amendment of the United States Constitution and the Seventh Article of the Connecticut Constitution; (2) the taking of plaintiff‘s property in order to devote it to church use was an illegal taking for a private purpose; and ( 3 ) plaintiff‘s land could not be taken and sold to a church because this necessarily violated a URC requirement forbidding discrimination on the basis of race, creed, color, or national origin.

Responding to the first point, the Supreme Court of Connecticut held that fair value for property taken by the redevelopment agency would obviously be greater than fair value of comparable property when resold. This was so, because resold property would be subject to re-use restrictions, as part of the redevelopment plan, and these restrictions would reduce fair market value. Without a showing that the church was given some unduly favorable price on the land so that fair value was not followed, the court concluded that there had not been any aid to religion.

The court noted that the second point-taking plaintiff‘s property and transferring it to another owner is an illegal taking of property for a private purpose-is an outdated argument, since it has long been settled that that facet of urban redevelopment is a constitutional exercise on the part of government.

The third argument was that the church could not use plaintiff‘s property without violating a nondiscrimination requirement which the URC imposed on all recipients of redevelopment property. Plaintiff argued that the church, by its very nature, would discriminate on the basis of creed in the use of its property. The court noted that this was an ingenious argument, but did not find it persuasive. Said the court, “the only construction which may be reasonably placed on the [nondiscrimination] restriction is that the type of discrimination as to creed which the URC sought to forbid on the part of the church was discrimination above and beyond that ordinarily and necessarily associated with, and incidental to, the operation of a church, such, for instance, as discrimination in the hiring of lay personnel as maintenance employees.” 3 4 The ruling of the trial court was affirmed.

The Supreme Court of New Hampshire, in Club Jolliet, Inc. v. M ~ n c h e s t e r , ~ ~ held that the Man- Chester Housing Authority could legally build public parking garages even though the general housing authority act did not expressly state this. The court found the authority for this in the statutory

JUDICIAL. REVIEW: PLAGER

authorization for “site improvements” and “other improvements.’’ The Iowa Supreme Court upheld the urban renewal project of the city of Fort Dodge against a broad attack, including arguments that urban renewal violates the Iowa Constitu- t i ~ n . ~ And the Wilmington, Delaware, Housing Authority’s use of eminent domain to take sound as well as unsound structures in order to carry out an urban renewal project was supported by the superior who cited with approval the words of the United States Supreme Court “that it is not for the courts to oversee the choice of the boun- dary line nor to sit on review on the size of a particular project area.”3 * The court was unwill- ing to substitute its judgment for that of the legislative branch of government. The Delaware Su- preme Court affirmed the decision of the superior court .3

L .

PRESERVATION VERSUS DEVELOPMENT

1970 saw what would appear to be the end of the judicial road for a group of citizens fighting to preserve from demolition certain historic buildings in Lexington, Kentucky. The buildings in question were included in an urban renewal project approved by the city of Lexington and the Depart- ment of Housing and Urban Development. Subse- quently, at the behest of a citizens group, later the plaintiffs in this action, the fourteen buildings in the urban renewal area were designated the “West High Street Historic District” and, on July 10, 1969, were placed on the national register of histo- rical places. A week later the Lexington urban renewal agency accepted a proposal submitted by a bank to build a multistory office building, requiring clearance of the historic buildings. Shortly thereafter HUD approved the proposal.

When demolition was begun on the buildings, the citizens group brought a suit in the local circuit court to enjoin the Department of Housing and Urban Development, the city, and the bank from proceeding with their plans. This action was dismissed by the circuit court judge, and the Ken- tucky Court of Appeals overruled plaintiffs’ motion for interlocutory injunctive relief pending appeal. At about the same time, the plaintiffs brought an action in the federal district court seeking essentially the same relief.

The district judge, giving a narrow reading to the recent federal cases granting standing to citizens groups in a variety of situations, held that the plaintiffs were without standing to bring the action. The court further concluded that, since the

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urban renewal plan had been approved prior t o the July designation in the national register-even though the actual renewal proposal was not approved until after that date, there was no obligation on the part of the urban renewal agency or the Department of Housing and Urban Development to comply with the requirements of the National His- toric Preservation Act of 1966. This was affirmed by the Sixth Circuit Court of AppealsY4O and the U. S. Supreme Court subsequently denied certiorari4

Zoning Intergovernmental conflict was the issue in an Illi- nois zoning case. A metropolitan sanitary district wanted to construct a sewage treatment plant. The city within whose boundaries the district’s land was located had previously zoned the land manufacturing, a classification that did not permit sewage treatment plants. The city notified the sanitary district, prior to the sanitary district’s purchase of the land, that the property was so zoned. The sanitary district responded by declaring its intention to proceed with the proposed use without applica- tion to the city for a change in zoning or a variation. The city sued to obtain a declaratory judgment against the sanitary district and an injunction against violation of the ordinance.

The sanitary district argued that the zoning ordinances of the city were not applicable against another governmental entity exercising its governmental function. The trial court found to the contrary. On appeal, the trial court was affirmed.42 In upholding the city’s position, the appellate court relied heavily on an earlier Illinois Supreme Court opinion in which the court had declared that sanitary districts were subject to municipal zoning. The case really had not raised that issue, however, since it involved a grant of a variance by a city to a sanitary district, upheld against the objections of nearby landowner^.^ The appellate court distinguished away two other Illinois cases, one in which a park district had been found not subject to the zoning of a municipality in which it desired to establish a park in a residence zone, and the other a case in which the city of Chicago was permitted to condemn property for an airport, despite the zoning provisions of a municipality in which part of the land was located.44 (As this article goes to press, the Illinois Supreme Court, in an as yet unreported decision, has reversed the appellate court and held that the sanitary district’s power of eminent domain is not subject to the municipal ordinance.)

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NEGOTIATED ZONING

The problem of injecting flexibility into governmental planning continues to befuddle zoning officials and courts alike. In Milwaukee, Wisconsin, the city’s reliance on an agreement entered into by a developer of a tract of land as part of a rezoning arrangement was upheld by a sympathetic court, The case started in 1955, when the city approved a shopping center, zoning part of the area involved “neighborhood shopping” and part “local business.” The latter designation permitted a wider range of business uses than the former. In 1961, the shopping center developers wanted to sell a portion of their land, as yet undeveloped, for use as a bowling alley. The particular tract was zoned neighborhood shopping, which would not permit the bowling alley. The owners petitioned the city for rezoning to local business. The homeowners in the area did not object to the idea of a bowling alley, but they did object to the local business zoning since it permitted the wider range of uses.

In the usual pattern of these cases, negotiations were conducted between the developers and the homeowners, resulting in an agreement by the developers that they would sign a declaration of restrictions limiting the use of the land to a bowling alley and related uses, and for no other uses. The agreement also provided for a buffer planting strip and certain other protections for the homeowners. The proposed declaration of restrictions stated that the restrictions were for the benefit of the city; were to be enforced by the city by injunction; and were to run with the land for a period of some twenty years. Subsequently, the city plan commission recommended rezoning from neighborhood shopping to local business. The property owner executed the declaration of restrictions, and the rezoning ordinance was approved by the council.

Unfortunately, the tract that was subject to the declaration of restrictions and which had been rezoned was slightly larger than the parcel that was to be sold for the bowling alley. The result was a leftover strip of land approximately 190 feet by 42 feet, which was zoned local business but restricted by the declaration. Seven years later, the shopping center developers, who apparently still owned the strip, agreed to sell it to a car wash operator. The car wash operator did not know of the 1961 deed restriction, and apparently the sellers “forgot.” The car wash operator applied to the city for a building permit and the permit was issued. He subsequently entered into a contract to buy car


wash equipment and made a downpayment of $20,000. When word leaked out, the alderman for the area involved blew the whistle on the project, the building permit was revoked, and the city council promptly rezoned the strip from local business back to neighborhood shopping.

The car wash operator then brought suit to block the city’s efforts to block his car wash. The trial court held for the car wash operator and ordered the city to permit him to proceed. On appeal the Wisconsin Supreme Court, in State ex re1 Zupancic v. Schimenz distinguished between

contract zoning”-in which the city zoning authority itself contracts with a property owner for certain zoning, and agreements made between other parties to use a tract of land in a way which makes it acceptable for the requested rezoning, which the city then grants. The former, the court said, was invalid; the latter is not:

We hold that when a city itself makes an agreement with a landowner to rezone the contract is invalid; this is contract zoning. However, when the agreement is made by others than the city to conform the property in a way or manner which makes it acceptable for the requested rezoning and the city is not committed to rezone, it is not contract zoning in the true sense and does not vitiate the zoning if it is otherwise valid.4

The court decided that the transaction here was not contract zoning. The distinction in verbal terms is real enough. As a matter of operational reality and sound administration, however, it seems doubtful that the validity of negotiated zoning should depend on whether the city’s interests are openly represented by its own employees or by spokesmen for a group of affected neighbors. Cer- tainly one would assume that in most cases a competent city attorney could structure the negotiations with property owners seeking controversial rezonings to fit within the Zupancic rule. Perhaps sensing the tenuousness of its distinction, the Su- preme Court gave the city a little free advice for the future. The procedure used by the city, said the court, might well lead to an agreement with the zoning authority that would be invalid. A better alternative, where imposition of conditions on land development is desirable, might be through ordinances providing for special uses, special excep- tions, and similar uniform administrative mechanisms.

Finally, the court had to deal with the car wash operator’s contention that the combination of the

6 6


granting of the building permit plus the fact that the car wash operator had made a $20,000 downpayment on machinery should bar the city from now changing its mind and enforcing the restrictive agreement. The court held that the building inspector could not waive the city’s responsibility to enforce the restrictions and that the car wash operator should have known about the restrictions in view of the fact that they were of record.

The Rhode Island Supreme Court decided a case in which the right law appears to have come out with the wrong result. A property owner wished to build a restaurant on land that had been rezoned in 1967 from general residence to limited business, the latter classification permitting restaurants. However, it appears that when the town council enacted the amendment, it included five conditions, one of which provided that the property could be used only for the construction of an office building. (It is unclear whether this rezoning took place at the request of the property owner and with the knowledge on the part of the town council that property owner wished to build a restaurant , or whether the desire to build a restaurant came later.)

In any event, the property owner’s request for a building permit for a restaurant was denied by the building inspector, apparently because of the condition attached by the town council to the earlier rezoning. Then, the property owner’s appeal-to the zoning board of review-of the building inspector’s decision was denied. The property owner then sought review by the Supreme Court of Rhode Island by filing a petition for certiorari, which was granted.

In the Supreme Court, plaintiff argued that the town council was without authority under the zoning enabling act t o place ad hoc conditions on the use of land otherwise zoned for limited business, and further, that the board of review had jurisdiction to declare such conditions an invalid exercise of the town council’s power. The court, however, restated the issue as whether the board of review erred in failing to overrule and reverse the decision of the building inspector on the ground that the town council was without authority to impose the condition. On this issue the court concluded that the zoning board of review did not have authority to override decisions of the town council on zoning questions. Its duty in an appeal was to review the ministerial actions of the building inspector to in- sure that they were consistent with the present zoning ordinance. This conclusion seems sound; a

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subordinate administrative board is not the appropriate forum for determining the validity of legislative actions.

After disposing of this issue, however, the court then ruled that the petition for certiorari was denied and dismissed, and the decision of the board affirmed. The court never seemed to deal with the property owner’s central issue-whether the town council had authority to attach the conditions to the rezoning. Most courts today would probably hold such conditions invalid. This case is illustra- tive of the dangers and pitfalls in the procedural morass involved in challenges to zoning decision^.^

PROCEDURAL CHALLENGES

Procedural niceties tripped up the property owner in City of Hutchins v. P r a ~ i j k a . ~ ~ The 1965 zoning ordinance classified property owner’s land as residential. It also provided that “the governing body may from time to time enact, supplement, or change by ordinance the boundaries of the districts or the regulations herein established.” (Emphasis mine.) Subsequently, the city council, upon recommendation of the planning commission, reclassified the land from residential t o manufacturing. The reclassifying action was apparently in the form of a resozution, rather than an ordinance. The zoning map was changed to reflect the reclassification, and the property owner made plans to proceed under the changed classification. Later, the mayor, who as the court noted was on unfriendly terms with the property owner, advised the property owner that the map was not accurate and that the tract was still classified as residential. The property owner than instituted an action to enjoin the city from interferring with his use of the land consistent with the manufacturing classification.

The issue before the court was whether the zoning ordinance could be amended by resolution, as distinct from ordinance. The court answered no. If the initial zoning classification was by ordinance, it takes an ordinance to amend it. The court ex- plained that the reason for this was the procedural requirements of notice and hearing which are generally required for the adoption of ordinances, but not generally required for the adoption of mere resolutions or motions. Unfortunately, the court’s opinion does not indicate whether the particular resolution involved in this case was passed with or without the notice and hearing generally required for zoning changes, regardless of how accomplished.

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The sloppiness and confusion endemic to the administration of zoning and planning is further documented in other cases. In Cocoran v. Village of B e n n i n g t ~ n , ~ ~ the village’s attempt to deny plaintiff water and sewer services for his mobile home park on the ground, among others, that the zoning on the property did not permit such use, was struck down by a court finding that the provisions of the state zoning enabling act had not been met. In the Louisiana case of Talbert v. Planning Commission, City of B o g a l ~ s a , ~ ’ the court of appeals upheld a plaintiff‘s contention that the planning commission and the zoning commission, though composed of the same personnel, must hold separate meetings with separate minutes.

the Supreme Judicial Court of Massachusetts was less demanding, allow- ing a Board of Appeal vote taken by telephone and written up by the clerk to stand as official action. The Supreme Court of Massachusetts decided that “the informality of this procedure inevitably raises uncertainties, invites challenges and needlessly leads to litigation . . . we conclude, nevertheless, as did the judge, that the procedure was not so irregu- lar as to invalidate the action of the Board.”

In a later case, the Massachusetts court did not deal quite so lightly with procedural requirements for written findings. McNeeZy v. Board of Appeal of Boston53 saw the court invalidate a variance granted to Suffolk University. A number of grounds were given by the court for the invalidity, including the fact that “the board [Board of Ap- peal] did not make the explicit findings which are prerequisite to the granting of a variance and which, as we have often said, are not supplied by a bare recital of the statutory conditions essential to the granting of a variance.”

A city’s efforts to violate its own zoning ordinance were frustrated in SiZvera v. City of South Lake Tahoe. The city zoning ordinance applicable to the tract in question contained a maximum height limit of fifty feet and certain requirements respecting setbacks. A property owner applied to the city planning commission for a variance to build a high rise. The planning commission denied the variance. The property owner appealed to the city council. The city council was apparently about to grant the variance until the city attorney pointed out that there was no legal ground for the variance, since no hardship could be shown. The council then enacted ordinances permitting heights in excess of those permitted by the existing ordinance. The procedures for amend-

In Zurtarian v. Minkin,5


ments to the zoning ordinance were not complied with, particularly those requiring public notice, hearing, and publication. The only grounds upon which the ordinance could be held valid was if it was an interim or emergency ordinance authorized by the enabling act. The court of appeals held that the ordinance could not be so classified. An interim ordinance, noted the court, is designed to preserve the status quo pending the development of a comprehensive regulatory program. In this case the ordinances did not prohibit, instead they authorized uses that were previously prohibited. The court invalidated the ordinance on the grounds that it was adopted in violation of the zoning enabling act and procedural due process.

FAIR DEALING In an interesting case in the Court of Appeals of Maryland, the court displayed both a sound insight into local politics and a delightful sense of hu- m ~ r . ~ ~ The problem before the court was this. A general contractor, who apparently needed additional space for storage of heavy materials and trucks, purchased two large tracts of land zoned commercial, adjacent to a residential area. The tracts involved were heady overgrown, and de- scribed by witnesses as a “mess,” a “jungle,” and a “wilderness.” ’’ The difficulty was that there was no vehicular access to the commercial tracts. There was a street that ran through the adjacent residential area, but it deadended at a small stream which divided the commercial tracts from the residential area. A bridge that had once stood at the end of the street had long since fallen down. To build a new bridge at the end of the street would apparently be an expensive proposition, costing some- thing upwards of $50,000. The contractor thought he found an easier way out. He purchased a smaller tract of land on the residential side of the stream, across which he could build a driveway with a culvert angling from the existing street to the commercial lots. The question before the court was whether building such a driveway across a residential lot would be a business use of land in a residential use district. The court concluded that it would.

The contractor argued that such a decision would result in confiscation of his commercial lots, since that was the only feasible access he had. To this the court responded that his legal access to his lots was by way of the street where the bridge had fallen down.

That he can’t drive a motor vehicle onto the property is quite beside the point. Access can


be accomplished on foot or on horseback; materials can be fetched by packtrain. A bridge would be far more convenient, of course, and, in the long run, much less expensive. But this is none of our concern, and, what is somewhat more to the point [the contractor] knew the circumstances when he exercised his options and committed his com- pany to purchase [the lots] .5

The court was not entirely unsympathetic with the contractor, however. “There is about this case a faint bouquet suggesting that [the contractor] may be the victim of a little hanky-panky.” The effect of the city’s refusal to permit the contractor to reach his land with a relatively inexpensive driveway meant that the residents would continue to have a private park or playground at no expense to them or the city, and the city at the same time had created value in the land by classifying it for commercial use without providing it with anything in the way of services. The court saw no reason why the contractor and the city should not be able to arrive at a mutually satisfactory arrangement for building a bridge across the already established street, “provided negotiations looking to such an arrangment are undertaken in the utmost good faith. All concerned should understand that any litigation which may develop in the future will be subject to careful scrutiny by the courts to see if there is any lack of good faith.” O

Housing Cases of importance to. the conduct of governmental housing programs continue to appear in significant numbers. During the last several years, this review has reported on the virtual revolution that has occurred in public housing practices as a result of aggressive action by legal aid organizations challenging arbitrary practices of the agencies operating public housing units throughout the country. Admissions practices involving vague and unpub- lished criteria with no known procedure for orderly establishment of waiting lists or other methods for processing applicants, have been found to violate federal statutes and constitutional requirements6 Specific criteria, such as provisions that unwed mothers could not live in public housing, have been struck down.6

RESIDENCY REQUIREMENTS

One requirement found in a number of local public housing agency rules states that applicants must be residents of the particular community for some

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designated period, often as much as two years, in order to be eligible for admission. For example, the Atlanta Housing Authority required that applicants reside in the community for twelve months out of the thirty-six months immediately preceding appli- cation. A proposed court complaint was served on the housing authority on behalf of a group of Atlanta residents who had been declared ineligible under this residency requirement. The housing authority eliminated the residency requirement after being served and without waiting for actual filing of the complaint.6

. I . the virtual revolution that has occurred in public housing practices as a result of aggressive action by legal aid organizations . . .

The Housing Authority of the City of Newport, Rhode Island, did not respond similarly. The authority had a regulation that applicants for public housing must be resident in Newport for at least two years immediately prior to applying for housing. Two applicants, one a Rhode Island citizen, but from another town, and one a New York citizen, were denied admission by the housing authority on the ground that they did not meet the residency requirement-although they qualified in all other respects. When the authority persisted in its position, the Rhode Island legal services agency brought suit against the housing authority to have the requirement declared invalid.6

In its own defense, the housing authority raised several arguments. First it argued that the residency requirement was necessary to discourage in- digents from entering the city of Newport. The court rejected this argument, noting that it rests on an incorrect assumption: that poor people are primarily motivated in making a geographical change by the availability or non-availability of public housing. But, said the court, the facts surrounding the immigration of the plaintiffs in this case dem- onstrate the mistake in this assumption. The court went on to note, however, that even if a move to Newport is motivated by a desire to obtain public housing, a political subdivision is not constitutionally permitted to “punish” the indigent newcomer by denying him public housing facilities.

The housing authority further argued that the residency requirement served to give priority in public housing facilities to those who are established residents of Newport. The court recognized the need for establishing some system of priorities

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when the number of public housing units available falls short of the known needs, as they did in Newport. But, observed the court, the durational residency requirement creates a priority unauthor- ized by legislation. Furthermore, the effect of this priority would be to reward those who have an investment in the community or have contributed to it in taxes or otherwise. While this might at first glance seem logical, this reasoning would logically permit the state to bar new residents from schools, parks, libraries, police protection, and other public services. That action would clearly be contrary to the equal protection clause of the federal Constitution.

In its opinion the court cited and quoted at length from the 1969 decision by the United States Supreme Court holding that durational residency requirements as prerequisites for public welfare are unconstitutional.6 The court added its own view that:

Moreover, not only is the instant residency requirement a limitation on access to a necessity of life, it also tends directly to inhibit freedom of movement and indirectly to di- minish familial and consensual associations of persons. It has long been recognized that the basic human right to geographic mobility, either in pursuit of preferred associations and opportunities or merely seeking a change in environment, is constitutionally protected.6

The court concluded that the residency requirement was a violation of the equal protection clause of the Fourteenth Amendment to the Constitution of the United States and on that ground must be declared unconstitutional and void. The housing authority was permanently enjoined from enforcing that section of its regulations.

EVICTION PROCEDURES

Several practices of the New York City Housing Authority came under attack in EscaZera v. New York City Housing Auth~rity.~ With remarkable uniformity, public housing authorities around the country give their tenants month-to-month leases, automatically renewable, unless terminated at the end of any month by either party giving the other one-month’s notice. Since a series of court decisions in the late 1960’s and the issuance of a circular by the Department of Housing and Urban Development establishing mandatory procedures governing initiation of eviction procedures, public housing authorities can no longer terminate their tenants arbitrarily and without notice.6


The procedure used by the New York Housing Authority and under challenge in Esculeru involved termination for non-desirability and for breach of housing authority rules and regulations. Plaintiffs charged that the procedures employed by the housing authority were deficient in several respects, including the fact that the summary notice used was not adequate to inform the tenant of the alleged activity that was objected to; that the housing authority refused to give the tenants access to the material in their records held by the authority and upon which the authority relied in making its decisions; and that the housing authority denied the tenant the opportunity to confront and cross- examine persons who supplied information in the tenant’s record.

In addition, plaintiffs challenged the practice of the housing authority of assessing “additional rent” on tenants who violated rules and regulations established by the housing authority. These additional rent assessments were made by the project manager at his discretion.

The trial court found no merit in plaintiffs’ issues and dismissed the action. On appeal, the Second Circuit Court of Appeals reversed. Said the

The minimal procedural requirements of due process under the Fourteenth Amendment must reflect the balance between the government’s interest in efficient administration and the nature of the individual’s interest being affected by governmental action. We hold only that granting every favorable inference to plaintiffs’ complaints and affidavits, it appears that the Housing Authority’s procedures are deficient in several specific aspects. Upon trial, the Housing Authority may be able to show great need for expedited procedures or the plaintiffs may fail to substantiate all of their allegations.

The court also noted that even though the termination of tenancy procedures afforded by the housing authority in this case admittedly satisfied the requirements of the Department of Housing and Urban Development circular, this itself did not dispose of the question of whether the procedures satisfy the due process requirements of the Four- teenth Amendment. The case was remanded for trial on the merits.

In a similar case involving the Housing Authority of the City of Durham, North Carolina, the Fourth Circuit Court of Appeals spelled out in detail the procedures required to properly evict a tenant from public housing.70 The tenant in this case had


been informed by the housing authority that several of her neighbors had complained of the conduct and morals of her children, and that as a result her lease was being terminated. The housing authority afforded her an administrative hearing on the matter, but refused to give her the specifics of the alleged immoral acts, the names of the com- plainants, the dates of the specific acts of miscon- duct on the part of her children, or the rules governing the manner in which the hearing was conducted.

Plaintiff‘s suit against the housing authority to invalidate the termination of her lease was dismissed by the district court. On appeal her claim was upheld, and the district court reversed. The appeals court cited with approval the decision of the Second Circuit in Esculeru and the latest United States Supreme Court case on welfare benefits, Goldberg v. In Goldberg, the question was whether prior to termination of welfare benefits the government was required by constitutional due process to give the welfare recipient adequate notice, hearing, and an administrative ad- judication before, rather than after, benefits were terminated. The Supreme Court held that due process required such a procedure. Citing Goldberg as equally applicable to hearings for public housing tenants, the Fourth Circuit said:72

Succinctly stated, Goldberg requires (1) time1 and adequate notice detailing the rea-

tunity on the part of a tenant to confront and cross examine adverse witnesses, (3) the right of a tenant t o be represented by counsel provided by him to delineate the issues, present the factual contentions in an orderly manner, conduct cross examination and generally to safeguard his interests, (4) a decision, based on evidence adduced at the hearing, in which the reasons for decisions and the evidence relied on are set forth, and ( 5 ) an impartial decision maker.

sons F or a proposed termination, (2) an oppor-

RENT DETERMINATION

An interesting variant of the problem arose in Huhn v. G ~ t t l e i b . ~ ~ Plaintiffs were members of a tenants association at the Castle Square Project in Boston, a development of low and middle income housing financed as a Section 221(d)(3) project. The landlord filed a proposed monthly rent increase of $28 per apartment with the regional director of the Federal Housing Administration. Plaintiffs sought an opportunity to be heard on the proposed increase. When the FHA failed to afford

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this opportunity, they brought suit in the federal district court. The district court granted the plaintiffs’ request for a preliminary injunction, but withdrew the order when the FHA agreed to provide the tenants with a hearing.

The hearing was held before a member of the FHA staff, and plaintiffs introduced evidence con- cerning the condition of the buildings along with testimony designed to show that the landlord could maintain a satisfactory rate of return on his investment with a smaller rent increase. Following the hearing, the FHA notified the plaintiffs that a monthly increase had been approved of $22 per apartment.

Plaintiffs immediately renewed their petition for an injunction, complaining that the FHA had failed to afford them a “full and fair” hearing. The district court, in effect reversing its earlier position, held that the plaintiffs had no right to a hearing and no standing in court to protest the agency procedure. On appeal to the First Circuit Court of Appeals, the plaintiffs argued that they had a constitutional right to a hearing, including opportunity to cross-examine adverse witnesses, and to an agency decision based on a formal record. They also claimed a right to judicial review of an adverse - agency action. The appeals court held that, applying the constitutionally relevant standard of due process to this case, the government’s interest in a summary procedure for approving rent increases outweights the tenant’s interest in greater procedural safeguards. Courts, it was held, are generally ill-equipped to superintend economic and manage- rial decisions of the kind involved; the problem of accommodating procedures for tenant participation to the needs of effective housing management is a task primarily for Congress and the FHA, and not for the courts. The district court’s dismissal of the cause of action was affirmed.

COME’ETlTIVE BIDDING

The necessity for competitive bidding in governmental housing programs was the issue in an important New Jersey case, Lehigh Const. Co. v. Housing Authority of City of Orange.74 A New Jersey statute requires competitive bidding on contracts for public works when the amount involved ex- ceeds $2,500. The Housing Authority of the City of Orange entered into an agreement with HUD for the construction of 234 dwelling units to be developed. by the turnkey method. In accordance with the procedures spelled out in the low-rent housing

manual, the housing authority advertised for pro- posals and received six. One was submitted by plaintiff, Lehigh, and another by defendant Alba. Lehigh’s was the lowest in cost for the type and design of building it proposed. Alba’s was substantially higher, although the design and physical lay- out of the building complex were quite different.

The housing authority, after review by the HUD regional housing assistant’s office, tentatively selected Mba as the developer. At this point Lehigh brought suit against both Alba and the housing authority on the grounds that an award of the development contract to Alba would violate the state’s competitive bidding statute. The trial court agreed with Lehigh and held that the tentative designation of Alba was void.

On appeal, the New Jersey Supreme Court reviewed the history of the state’s law regarding the relationship of state agencies to federal agencies and concluded “that the legislature has long been interested in taking advantage of any federal aid, financial or otherwise, which may be available for the benefit of the citizens of our state.” 7 5 To require competitive bidding by housing authorities would in effect mean that no turnkey projects could be built in the state of New Jersey. The court held that the broad language of the New Jersey statutes was sufficient to reved an intention on the part of the legislature to sanction an exemp- tion of turnkey housing construction from the competitive bidding requirements of the state.

Conclusion This year’s Planning Plaudits Plaque goes to Judge Sweigert of the Northern District of California, for putting the planning monkey squarely where it belongs-on the backs of local government. Having found in S A S S 0 that the de facto discrimination in housing opportunities in Union City was not the result of affwmative discrimination by the government, he could have stopped there, since that was what he was asked to determine. He did not, though. He looked ahead to the obvious conse- quences of continuing business as usual and fingered the local government for its failure to take an active role in modifying the practices of the developers and the indifferent attitude of the white middle class. The lead in this was set by Judge Austin of Chicago in his landmark decision in Gautreaux. Judge Sweigert followed this lead and carried it one step further.

190 AIP JOURNAL MAY 1971

In a slight departure from the precedent of awards to the judiciary, but following the same theme, the Fickle Finger of Fate Award for this year goes to the city councils of Lackawanna, Libertyville, and every other local legislature in the United States which in 1970 failed to use its powers to solve the pressing people problems of housing, transportation, environment, and the rest.

NOTES 316 F. Supp. 742 (N.D. Illinois 1970). 296 F. Supp. 907 (N.D. Illinois 1969). 316 F. Supp. at 747, citing Flast v. Cohen, 392 U.S. 83, 99

(1968). 4 See the discussion of this issue under the heading of “The

Role of the Judiciary” in Sheldon J. Plager, “Judicial Review: Recent Decisions in Planning Law: 1968,” Journal of the American Institute of Planners, 35 (July 1969), 265-60; see, also, Association of Data Processing Service Organizations, Inc. v. Camp, 397 U S . 150 (1970);BarZow v. Collins, 397 U S . 159 (1970).

316 F. Supp. at 748. 428 F.2d 754 (Third Cir. 1970). See, also, Sherry Arnstein,

“Maximum Feasible Manipulation,” City (October-November 1970), 30-8; and Michelle Osborn, “Postscript: Philadelphia’s Model Cities Conflict in Context,” City (October-November 1970), 39-43.

42 U.S.C. 8 0 3303(a)(2), 3303(b)(l). Note 1, supra.

9 266 A.2d 428 (Vermont 1970). l o 424 F.2d 291 (Ninth Cir. 1970). l 1 See, Washington ex re1 Seattle Title Trust Co., v. Roberge,

278 U.S. 116 (1928) ;Eubank v. City of Richmond, 226 U.S. 137 ( 1912).

l2 424 F.2d at 294. l 3 417 F.2d 321 (Sixth Cir. 1969). l4 Sheldon J. Plager, “Recent Decisions in Planning Law:

1969,” Journal of the American Institute of Phnners, 36 (Sep- tember 1970), 335 and 340.

424 F.2d at 295. l6 Southern Alumeda Spanish Speaking Organization v. City of

Union City, No. 51590, Memorandum of decision by Sweigert, J., fded July 31, 1970.

l 7 313 F. Supp. 1 (N.D. California 1970). l 8 313 F. Supp. at 5. ‘9 90 S. Ct. 1873, 2247 (1970), Sub. Nom. James v. Valtiena. 2o Kennedy Park Homes Assn. Inc. v. City of Lackawanna, 318

21 120 Ill. App. 2d 172, 256 N.E.2d 351 (1970). 22 DeSimone v. Greater Englewood Housing Corp., No. 1, 56

23 267 A.2d at 37. 24 267 A.2d at 38-39. 25 439 Pennsylvania 466,268 A.2d 765 (1970). 26 National Land and Investment Co. v. Easttoum Township

Board of Adjustment, 419 Pennsylvania 504,215 A.2d 597 (1967). 27 268 A.2d at 766-767. 28 437 Pennsylvania 237,263 A.2d 395 (1970). 29 263 A.2d at 399. 30 22 ZD 100A-C (1970). 3 1 Lakewood Homes, Inc. v. Board of Adjustment, 258 N.E.2d

470 (Common Pleas, Ohio 1970). 258 N.E.2d at 508.

F. Supp. 669 (W.D. New York 1970).

New Jersey 428,267 A.2d 31 (1970).

33 159 Connecticut 116, 267 A.2d 443 (1970), cert. den. 90 S.

34 267 A.2d at 449. 35 262 A.2d 844 (New Hampshire 1970). 36 Webster Realty Co., v. City of Fort Dodge, 174 N.W.2d 413

Ct. 2197 (1970).

(Iowa 1970).


A few of the more gross failures have been documented here. They, along with the innumerable lost opportunities with which all of us live and seem to accept as inevitable, contribute to planning looking impotent instead of dynamic, and to casting planning law in the role of obstacle at best and oppressor at worst. Planners, Arise! The issues can no longer be disguised.

3 7 Wilmington Housing Authority v. Nos. 500, 502 and 504

38 254 A.2d at 858, citing Berman v. Parker, 348 U.S. 26, 35

39 Nos. 500, 502 and 504 King Street v. Wilmington Housing

40 South Hill Neighborhood Association v. Romney, 421 F.2d

King Street, 254 A.2d 856 (Super. Ct. Delaware 1969).

(1954).

Authority, 262 A.2d 246 (Delaware 1969).

454 (Sixth Cir. 1969). 41 90 S. Ct. 1261 (1970). 42 City of Des Plaines v. Metropolitan Sanitary District of

Greater Chicago, 124 Illinois App. 2d 301,260 N.E.2d 340 (1970). 4 3 Heft v. Zoning Board of Appeals, 31 Illinois 2d 266, 201

N.E.2d 364 (1964). 44 See, Decatur Park District v. Becker, 368 Illinois 442, 14

N.E.2d 490 (1938); Village of Schiller Park v. City of Chicago, 26 Illinois 2d 278, 186 N.E.2d 343 (1962).

45 174 N.W.2d 533 (Wisconsin 1970). 46 174 N.W.2d at 538. 47Arc-Lan Co. v. Zoning Board of Review, 261 A.2d 280

4 8 450 S.W.2d 829 (Texas 1970). 49 266 A.2d 457 (Vermont 1970). 50 230 So. 2d 920 (Louisiana 1970). 5 1 255 N.E.2d 362 (Massachusetts 1970). 5 2 255 N.E.2d at 364. 53 261 N.E.2d 336 (Massachusetts 1970). 54 261 N.E.2d at 343. 5 5 3 Cal. App. 3d 554, 83 California Reptr. 698 (C.A. 3d Dist.

(Rhode Island 1970).

1970). 56 Leimback Construction Co. v. City of Baltimore, 264 A.2d

109 (C.A. Maryland 1970). 5 7 264 A.2d at 110. 5 8 264A.2dat 111. 59 264 A.2d at 111. 6o 264 A.2d at 112. 6 1 Holmes v. New York City Housing Authority, 398 F.2d 262

6 2 Thomas v. Housing Authority of City of Little Rock, 282 F.

63 Reported in, Clearing House Review, 3 (July 1969), 79. 64 Cole v. Housing Authority of City of Newport, 312 F. Supp.

692 (D.C. Rhode Island 1970). 6 5 Shipiro v. Thompson, 394 U.S. 618 (1969). 66 312 F. Supp. at 701. 6 7 425 F.2d 853 (2d Cir. 1970). 6 8 See, Thorpe v. Housing Authority of City of Durham, 393

U.S. 268 (1969); Vinson v. Greenburgh Housing Authority, 288 N.Y.S.2d 159 (Sup. Ct. App. Div. 1968); HUD Circular of February 7, 1967; and the discussion in Plager, “Recent Decisions in Planning Law: 1968,” 264,269.

69 425 F.2d at 867. 70 Caulder v. Durham Housing Authority, 433 F. 2d 998

71 397 U S . 254 (1970). 72 433 F.2d at 1004. 73 430 F.2d 1243 (1st Cir. 1970). 74 56 New Jersey 447, 267 A.2d 4 1 (New Jersey 1970). 7 5 267 A.2d at 47.

(2d Cir. 1968).

Supp. 575 (E.D. Arkansas 1967).

(Fourth Cir. 1970).

191

policy, planning, and the courts

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