The opinion of the court was delivered by: LORD, III
Plaintiffs filed this class action to enjoin the construction of a low rent housing project for the elderly in the 1700 block of North Croskey Street, Philadelphia, Pa. (herein referred to as "Project") and for other relief. Plaintiffs are residents of the area in which the Project is to be constructed. The individual defendants are those federal officials of the Department of Housing and Urban Development ("HUD") responsible for implementing the national housing policy. The Philadelphia Housing Authority ("PHA"), the local agency which proposed the Project, Tollin-Graboyes Company, the construction company under contract with PHA to build the Project, and HUD are also named as defendants.
In their complaint, plaintiffs allege that HUD failed to apply the proper site selection standards concerning the impact of the Project on racial concentration as required by the Civil Rights Acts of 1964, 42 U.S.C. § 2000a et seq., and of 1968, 42 U.S.C. § 3601 et seq. Plaintiffs claim that the Project will increase the racial concentration of the area which is over 95% black and thereby cause irreparable harm to plaintiffs. Plaintiffs also allege that PHA and HUD have concentrated low rent housing projects in predominantly black areas of Philadelphia thereby maintaining or increasing the existing pattern of racial segregation in housing in the city and that the Project will reinforce this pattern. Plaintiffs initially seek a preliminary injunction against construction of the Project. We have jurisdiction over the parties and jurisdiction of the subject matter under 28 U.S.C. §§ 1331, 1343 and 1361.
The Resident Advisory Board of Philadelphia has petitioned to intervene as plaintiff in order to represent the interests of all present and potential public housing tenants in Philadelphia. We will grant the motion. Intervenor does not join with plaintiff in seeking to enjoin the construction of the Project but does seek declaratory and injunctive relief to promote construction of public housing by PHA and HUD in all areas of Metropolitan Philadelphia.
A hearing on the plaintiffs' motion for a preliminary injunction was held on November 8-11, 1971. The motions for declaratory and injunctive relief concerning the overall effect of site selection policies of HUD and PHA on the racial concentration of public housing in Philadelphia were not considered at this hearing.
The Croskey Street Project is part of a package of five low rent elderly housing projects which were proposed in July, 1969 by PHA to HUD for federal funding. In accordance with regulations issued by HUD in compliance with the Civil Rights Act of 1964, HUD will not approve housing located in areas of racial concentration, i.e., concentration of minority groups, "unless alternative or additional sites in other areas provide a balanced distribution of the proposed housing" (herein referred to as "balanced program requirements"). 24 C.F.R. § 1.4(b)(2)(i); HUD Low Rent Housing Preconstruction Handbook, RHA § 7410. Since July, 1969, the proposed package of elderly projects has been revised in order to comply with HUD's balanced program requirement, and the present package includes the following sites:
(1) Croskey Street (also referred to as 23rd and Columbia) -- 100 units Black area;
(2) 50th and Haverford -- 69 units, Black area;
(3) 22nd and Venango -- 71 units, Black area;
(4) 52nd and Poplar -- 73 units, Black area;
(5) Washington Square West (also referred to as 8th and Locust) -- 360 units, White area.
PHA has not submitted a development program for Washington Square West because of pending litigation concerning designation of a project area committee for the Washington Square West Urban Renewal Area. Washington Square West Project Area Committee, et al. v. H.U.D., Civ. No. 69-2972 (E.D. Pa.). However, HUD has permitted the first three black sites in the package to proceed before a development program has been submitted because HUD concluded that it had clear and convincing evidence that the project would be built. HUD based this conclusion on the assurance of PHA that the City of Philadelphia remains fully committed to build low income housing in the area, the nature of the pending litigation, the designation of a developer for Washington Square West, the approval by City Council of 400 units of low and low-moderate income housing in Washington Square West and the stated policy of HUD to cut off all future housing money for Philadelphia if a balancing site for the package is not built.
On the basis of the above evidence, HUD gave final approval to 50th and Haverford and 22nd and Venango in early 1970 (both of these projects are near completion) and to Croskey Street in June, 1971. Approval of 52nd and Poplar was denied in April, 1971 because of uncertainty at that time concerning the status of Washington Square West, but HUD officials testified that they subsequently were satisfied that Washington Square West would go ...