The opinion of the court was delivered by: BRODERICK
The plaintiffs in this action have brought suit alleging that various defendants have violated the Civil Rights Acts of 1866 and 1871, 42 U.S.C. §§ 1981, 1982, 1983, 1985 and 1986; the Civil Rights Act of 1964, 42 U.S.C. § 2000d; Title VIII of the Civil Rights Act of 1968, 42 U.S.C. § 3601 et seq., as well as the Fifth, Thirteenth and Fourteenth Amendments to the United States Constitution. The plaintiffs commenced this action in 1971 seeking both injunctive relief and damages against the defendants in connection with their actions or inactions in the proposed construction of a low income public housing project in a White residential area. The Whitman Park Townhouse Project was to be built in South Philadelphia on a site bounded by Porter Street to the north, Oregon Avenue to the south, Front Street to the east, and midway between Second Street and Hancock on the west. (Exhibit P-168). Plaintiffs contend that the failure to build this proposed project violates their rights under the statutes and constitutional amendments enumerated above. Prior to trial, the plaintiffs, with the permission of the Court, dropped all damage claims against the defendants and now seek only injunctive relief. The plaintiffs are asking this Court to enter a sweeping decree which would order the defendants, their officers, agents, employees and any and all other persons acting in concert or participation with them to take all necessary steps to build the Whitman Park Townhouse Project as planned and establish an affirmative program to insure that the occupancy of the Whitman Park Townhouse Project is racially integrated; declare null and void any and all agreements and resolutions which are dysfunctional to the completion of the Whitman Park Townhouse Project; permanently enjoin the Department of Housing and Urban Development (HUD) from dissipating any funds now held in reserve for the purpose of constructing the Whitman Park Townhouse Project; order the City of Philadelphia (City), the Redevelopment Authority of Philadelphia (RDA), the Philadelphia Housing Authority (PHA), the Philadelphia City Council, and HUD to appropriate and/or spend any necessary funds to complete the original Whitman Park Townhouse Project, made necessary because of the delay resulting from the defendants' respective unlawful acts; and order the defendants City, RDA, PHA and HUD, in cooperation with the plaintiffs, to present to this Court a comprehensive plan which will remedy the racially segregated public housing system in Philadelphia by increasing as rapidly as possible the supply of housing units in non-racially impacted areas of the City so as to create equal housing opportunities for low income persons. This plan would, according to the plaintiffs, include a broad range of alternatives available to the City for public housing. Finally, the plaintiffs seek from this Court an order directing the defendants to reimburse plaintiffs for all costs and attorneys' fees arising as a direct result of this litigation.
This litigation, which was filed in 1971, has been protracted and vigorously contested by all parties and encompasses a complex and prolonged procedural history. Shortly after the suit was filed, this litigation was stayed by consent of counsel to await the outcome of a suit filed by the Whitman Area Improvement Council (WAIC) in the Philadelphia Court of Common Pleas.
In that lawsuit WAIC attempted, unsuccessfully, to halt construction of the Whitman Park Townhouse Project through the judicial process. After a trial in state court which lasted from August 4, 1971 through September 6, 1971, the case was dismissed as moot on March 20, 1974. In 1972, after it became apparent that the Common Pleas Court suit would not dispose of the issues raised in this Federal action, the parties began a discovery process which required constant intervention by this Court. The record in this case now contains over 450 docket entries. The parties, during the course of this litigation, participated in protracted discussions in an effort to bring about settlement of this litigation, and although it was generally conceded that additional housing was badly needed in Philadelphia, a settlement never materialized. The non-jury trial of this case commenced on October 7, 1975 and consumed 57 days, finally ending on January 21, 1976. All parties have now filed with the Court proposed findings of fact and conclusions of law with briefs in support thereof, and the matter is now ready for decision.
The plaintiffs in this case are individuals claiming to represent a class defined as "all low income minority persons residing in the City of Philadelphia who, by virtue of their race, are unable to secure decent, safe and sanitary housing, outside of areas of minority concentration, and who would be eligible to reside in the Whitman Park Townhouse Project."
The only individual named as a plaintiff in the plaintiff's Corrected Second Amended and Supplemental Complaint to testify at trial was Ms. Jean Thomas. Ms. Thomas resides in a scattered site house owned by PHA at 5024 Brown Street in Philadelphia, a predominantly Black area of the City. (N.T. 43-77, 43-78). Prior to moving to the Brown Street address in June of 1971, Ms. Thomas lived at 3855 Mount Vernon Street in Philadelphia, a scattered site house owned by PHA and located in a predominantly Black neighborhood. (N.T. 43-77). Ms. Thomas moved from her home on Mount Vernon Street because of the bad condition of the house.
The most serious problem in this house was that water constantly leaked into her basement up to the fifth or sixth step leading to the first floor. This basement water would become stagnant, creating a health hazard for her and her family. (N.T. 43-77). Her present scattered site house also has water in its basement which has destroyed all her personal belongings stored in the basement. (N.T. 43-78, 43-79). In addition, the electric wiring is in poor repair and Ms. Thomas has difficulty heating her second floor front bedroom. (N.T. 43-78). As a result of these problems, Ms. Thomas asked PHA to find her another house in 1971 and was placed by PHA on their waiting list. (N.T. 43-79, 43-83). Ms. Thomas testified that she "would have loved" to live in the proposed Whitman Park Townhouse Project. (N.T. 43-80).
Additionally, there are two organizational plaintiffs in the lawsuit, the Resident Advisory Board (RAB) and the Housing Task Force of the Urban Coalition (Housing Task Force). Both organizations have sued the defendants on behalf of themselves and their members. Ms. Nellie Reynolds is the president and chairperson of RAB and testified on behalf of RAB. (N.T. 43-6). RAB is an organization whose membership includes all those currently living in public housing in the City of Philadelphia. (N.T. 43-6, 43-8, 43-9, 43-10). Currently, there are approximately 120,000 public housing tenants in the City of Philadelphia. (N.T. 43-6). RAB and PHA have signed a memorandum of understanding which enables RAB to effectively advocate the position of all tenants of public housing and to act as a liaison between the tenants, PHA and HUD.
(N.T. 43-8, 43-11, 43-12). All tenants of public housing in Philadelphia are eligible to become members of the Board. (N.T. 43-8). Also, those who are eligible to become tenants of public housing, regardless of whether they have applied for and are on the waiting list for public housing, are eligible to become members of RAB.
(N.T. 43-10). Although people on the waiting list have no vote in RAB elections, RAB has undertaken to represent those on the public housing waiting list. (N.T. 43-65, 43-66). Ms. Reynolds personally has lived in public housing for 35 years and she currently lives in the Johnson Homes project at 2630-D Norris Drive, Philadelphia. (N.T. 43-6, 43-32). Ms. Reynolds testified that she felt that the Johnson Homes project needed modernizing and that if Whitman were built as proposed, she would consider asking to transfer to that project. (N.T. 43-34, 43-35, 43-75, 43-76).
The Housing Task Force is a semiautonomous arm of the Urban Coalition. (N.T. 44-101). The Urban Coalition is described as a partnership of business, labor and community people who have joined together for the purpose of bringing the varied resources of the community together to attack various urban ills, particularly those of minority groups living in the inner city. (N.T. 44-100). The membership of the Housing Task Force is chosen by the Executive Committee of the Board of Directors of the Urban Coalition and the Housing Task Force is empowered to make decisions in connection with housing in Philadelphia without the approval of the Urban Coalition. (N.T. 44-101). There is no requirement that members of the Housing Task Force be either tenants of PHA or eligible for public housing. (N.T. 44-126, 44-127). The Housing Task Force is concerned mainly with improving housing conditions for lower income people, and is therefore concerned with the availability of public housing for those low income groups. (N.T. 44-106, 44-107, 44-111). The Housing Task Force is also concerned with bringing industrialized housing to Philadelphia and asked the Urban Coalition to become involved in industrial housing. (N.T. 44-111). Therefore, at the time that plans were submitted for public housing on the Whitman site, the Urban Coalition, together with RAB, submitted a proposal to locate industrial housing on the site. The combined RAB and Housing Task Force proposal was rejected. (N.T. 44-111, 44-112). At the time this lawsuit was filed in 1971, of the fifteen members of the Housing Task Force, three members were living in public housing or eligible therefore. (N.T. 44-103). Another newer member of the Housing Task Force was a tenant in public housing until 1975. (N.T. 44-105). As of this date, at least one member of the Housing Task Force is eligible to live in public housing. (N.T. 44-129, 44-132).
The original defendants who were joined when this suit was filed were the then Mayor James H. J. Tate, the City Managing Director Fred Corleto, Multicon Properties, Inc. and Multicon Construction Corporation,
who were to be the builders of the Whitman Park Townhouse Project. The local community group opposing the Whitman project, WAIC, was permitted, pursuant to their motion, to intervene as a defendant in the lawsuit. WAIC then joined as third party defendants PHA, RDA and HUD. PHA is created by state statute
and is composed of five members, two of whom are chosen by the Mayor of Philadelphia, two by the Controller of the City of Philadelphia, with the four appointed members selecting the fifth.
The members serve for staggered five year terms. (N.T. 1-33, 1-34). RDA is also a creature of state statute
and all its members are appointed by the Mayor of Philadelphia. (N.T. 1-70).
In 1972, the new Mayor, Frank Rizzo, and the new Managing Director, Hillel Levinson, were joined individually as defendants and were substituted in their official capacities for their predecessors in office, Mayor Tate and Managing Director Corleto. The City of Philadelphia was later added as a defendant, as was RDA. Finally, after extensive discovery had been conducted, PHA and HUD were joined by the plaintiffs as defendants. The Philadelphia City Council was joined as a defendant in the event the Council was needed to insure that the Court could render appropriate relief.
On June 4, 1956, PHA conducted a public hearing at which various sites were considered for the development of low income housing projects. Citizens and groups from the Whitman area were in attendance at this PHA hearing, some nineteen of which testified and expressed their views on public housing. (N.T. 2-22). After the hearing, PHA passed a resolution selecting a site at Front and Oregon in Philadelphia for the Whitman project. (N.T. 1-81). Also in 1956, the Whitman site was approved as a public housing site by the Philadelphia City Planning Commission. (N.T. 1-84). On February 18, 1957, HUD gave tentative approval to the Whitman site for the development of a conventional public housing project. (N.T. 1-84). An annual contributions contract was executed by HUD on December 6, 1957, in the amount of $8,607,793, approving a development program for Whitman of 476 units and authorizing PHA to begin planning the Whitman project. (N.T. 1-85). Drawings for a high rise public housing project at the Whitman site were submitted to HUD by PHA and were approved by HUD on August 28, 1959. (N.T. 1-85). Condemnation and acquisition of the site by PHA took place during 1959 and 1960, culminating with the award of demolition contracts on June 26, 1960. This action had the effect of removing some of the Black families who lived on the Whitman site. (N.T. 31-147, 31-148).
On January 12, 1961, a second public hearing was conducted by PHA for the purpose of adding two small parcels of land to the Whitman site, which addition was approved by PHA. (N.T. 1-85, 2-22). Local opposition developed in reaction to the placing of high rise public housing in Whitman and WAIC was formed to oppose the Whitman project as planned. (N.T. 1-85, 2-23).
On October 27, 1963, RDA executed an application to establish the Whitman Urban Renewal Area. (N.T. 2-10). The application sought a federal grant of $3,311,024 and a temporary loan of $5,545,524 (totaling $8,856,548) to carry on the land acquisition, relocation of site residents, demolition and site clearance, site preparation, and rehabilitation or conservation required for the proposed Whitman Urban Renewal Area. (N.T. 2-10, 2-11). The plan included clearing 130 homes, none of which were at the Whitman public housing site, and rehabilitating 2,500 structures. (N.T. 2-11). The Whitman Urban Renewal Plan, dated October 23, 1963, which included the previously established Whitman public housing site, contained no height limitation for public housing within the area. (N.T. 2-11, 2-12).
The land use map for the Whitman Urban Renewal Area provides for public housing as the land use for the Whitman site and is the only site in the Whitman Urban Renewal Area designated for public housing. (N.T. 2-13). In 1963, the estimated racial composition of the Whitman Urban Renewal Area was 3,373 White families and 94 non-White families, 21 of which were to be displaced by the urban renewal. (N.T. 2-13). The total amount of all governmental funds expended through RDA in the Whitman Urban Renewal Area from 1963 through April 30, 1975 has been $11,178,210.43; of this amount $6,682,686.92 has constituted federal funds from HUD. (N.T. 2-21). RDA, with federal funds from HUD and from other sources, condemned and acquired a total of 101 properties and parcels of land in the Whitman Urban Renewal Area at a total estimated cost of $1,550,075. Between 1969 and 1973, 109 new homes were privately developed and sold for between $25,000 and $30,000, all of which were eligible for FHA-insured mortgages. (N.T. 2-16). There was no opposition by WAIC to these privately developed homes. (N.T. 2-20). From January 1, 1966 until May 1, 1975, Whitman residents, through RDA and with the aid of federal funds, have obtained $2,718,278 in loans and grants to rehabilitate their homes. (N.T. 2-20). A total of 1,123 households have received funds from this program. Over one-fourth of all the households in the Whitman area have benefited from the grant and loan program initiated by RDA. (N.T. 2-21). Further, urban renewal activities in the area have included a wide range of activities benefiting the Whitman area. (N.T. 2-20).
In 1964, after opposition by WAIC had developed to the high-rise design of the proposed Whitman project, a special Act of Congress was passed, known as the Barrett Amendment. (N.T. 1-85, 20-11).
Pursuant to the Barrett Amendment, the design of the proposed Whitman project was changed from high-rise to low-rise construction and RDA purchased the Whitman site land from PHA for $1,217,679.59 with the understanding that the land would be conveyed by RDA to a developer for construction, and finally deeded back to PHA for management by it as a low-rise public housing project. (N.T. 1-85, 1-86, 5-58, 5-59, 20-11). The sale of the land to RDA resulted in a write-down of the cost of the land and a change in the zoning of the Whitman site within the Urban Renewal Area to permit low-rise public housing. (N.T. 5-59). Such a change in the urban renewal plan was approved by City Council on September 2, 1964. (N.T. 1-85).
In May of 1967, City Council passed an ordinance approving the purchase of the land from PHA. (N.T. 1-87). In late 1967, Hartsville Construction Company was chosen as a developer to build 114 units on the Whitman site. (N.T. 1-87, 5-18). WAIC opposed certain aspects of the Hartsville plan and Hartsville refused to execute the contract of sale tendered to it on May 2, 1969. (N.T. 1-87, 5-18). Because of the opposition by WAIC to the Hartsville plan, a decision was made to look for a new developer which would develop its own plan and not use the old Hartsville plans. (N.T. 5-19). Also, because the Hartsville plans were not to be used, a "turnkey" developer was obtained. (N.T. 5-21). A turnkey developer differed from a conventional housing developer in that the turnkey developer would purchase the land, hire the architect to design the project, produce the drawing, set a cost for his project and then submit his proposal to the Housing Authority. (N.T. 5-22). The Housing Authority, if it decided to accept a turnkey developer's proposal, would, after appropriate public hearings and approvals, sign a contract with the turnkey developer and HUD, which specified that the turnkey developer would build the project and upon completion turn it over to the Housing Authority for the agreed upon purchase price. The Housing Authority would manage the project and HUD would provide the necessary subsidies. (N.T. 5-22, 5-23).
During the latter part of 1969, PHA and RDA advertised for turnkey developers for the Whitman site pursuant to all applicable regulations. Twelve developers responded, and on April 28, 1970, PHA chose Multicon as the developer, which choice was approved by HUD on May 20, 1970. (N.T. 2-7, 2-8).
The Multicon proposal was considered superior to all other proposals because it maintained existing street patterns and the housing was of the same design as the other houses in the Whitman area. (N.T. 5-25, 5-26, 5-27, 5-28).
The Whitman Park Townhouse Project was unique in design for public housing because each house was designed with street frontage and a separate entrance and could be individually plotted on a separate building lot. (N.T. 5-41, 5-47, 5-62, 5-63, 5-64). This design was in anticipation of a federal program called Turnkey III, which called for a lease-purchase agreement pursuant to which the public housing tenant could eventually become the owner of his own home. (N.T. 5-46, 5-48).
On July 14, 1970, RDA and Multicon entered into an agreement of sale to enable Multicon to obtain the land at Front and Oregon and build the Whitman Park Townhouse Project. On October 27, 1970, Mayor Tate signed an ordinance which had been passed by City Council approving Multicon as the developer of the project. On October 29, 1970, based upon appropriate HUD approval of the project, PHA and Multicon entered into an agreement of sale whereby Multicon was to construct 120 townhouses on the Whitman site. (N.T. 2-8, 2-9, 2-10). On October 30, 1970, RDA conveyed title to the Whitman Park Townhouse Project site to Multicon.
Prior to the signing of the contracts with Multicon, WAIC, which was designated as the local citizen participation unit, for the Whitman Urban Renewal Area, was involved in numerous meetings and correspondence with RDA, PHA and Multicon officials. (N.T. 2-22, 2-25, 2-26). On June 2, 1970, a meeting was held in the Whitman community and was attended by officials from RDA, PHA, Multicon and the Mayor's office. (N.T. 5-60). The meeting was held to give WAIC an opportunity to closely review the Multicon plans for the Whitman Park Townhouse Project. (N.T. 5-61). WAIC made several suggestions in connection with the building materials to be used in the project and fire safety for the completed townhouses. (N.T. 2-26, 5-65, 5-66, 5-68). The suggestions were accepted by those officials in attendance at the meeting and, after investigation, appropriate changes were made in the Whitman Park Townhouse Project plans. (N.T. 5-67, 5-68). Also, the home ownership potential and the advantages thereof of a public housing development under Turnkey III were explained to WAIC. (N.T. 5-70, 5-71, 5-85). WAIC officials stated after the June 2, 1970 meeting that the Whitman Park Townhouse Project plans "look excellent", that WAIC was "very impressed with the plans" and that WAIC felt that the houses would be "an asset to our community." (N.T. 2-26, 2-27).
On January 28, 1971, the president of WAIC, Alice Moore, wrote to RDA in connection with the Whitman Park Townhouse Project: "We . . . do not feel that all of our questions have been thoroughly answered." (N.T. 2-32). On March 22, 1971, two PHA representatives attended a WAIC meeting to answer community questions about the project. At the same meeting, Fred Druding was elected as the new president of WAIC and a decision was made to demonstrate the next morning in opposition to the Whitman Park Townhouse Project. (N.T. 2-33).
Although a groundbreaking ceremony was conducted on December 16, 1970, actual construction did not commence until March of 1971. At 7:30 a.m. on March 23, 1971, approximately thirty women entered the Whitman site and gathered around a bulldozer and backhoe, blocking the operations of the contractor and refusing to leave the area when requested to do so. (N.T. 2-33, 2-34). On that same day, demonstrators at the Whitman site blocked a truck attempting to make a delivery to the Whitman Park Townhouse Project. (N.T. 2-34). Again, on March 25, 1971, demonstrators refused to permit a bulldozer to be operated on the Whitman site. (N.T. 2-34). As a result of these activities, Multicon filed a complaint in the Court of Common Pleas of Philadelphia County seeking injunctive relief to permit it to continue with the construction of the Whitman project. (N.T. 2-34, 3-10, 3-11). Pursuant to the complaint filed by Multicon, a preliminary injunction was issued on April 2, 1971, enjoining further interference with the construction of the project. (N.T. 2-35, 3-9, 19-7). On April 6, 1971, a meeting was held in the chambers of the Honorable Ned Hirsch, the Judge assigned to the Multicon case, to determine whether the preliminary injunction issued to Multicon should continue in effect. (N.T. 3-16, 3-17). The preliminary injunction was continued in effect with the consent of all parties until April 30, 1971. (N.T. 2-35). However, all attempts by Multicon to return to work at the site proved futile. (N.T. 2-35, 2-36, 2-39, 2-77, 2-78, 3-32, 3-33, 3-38, 3-39, 19-8, 19-9). On several occasions Multicon asked the Philadelphia police for aid in enforcing their injunction against interference with construction but were told that it was up to the Sheriff's office to enforce injunctions and that the Philadelphia police were not going to interfere by making arrests unless specifically requested by the Sheriff to do so. (N.T. 19-13, 19-16, 19-17). On April 26, 1971, Multicon obtained a writ of assistance from Judge Hirsch. (N.T. 3-36). On April 30, 1971, Multicon agreed, after a conference in Judge Hirsch's chambers, to the issuance of an order prohibiting Multicon from returning to work pending the outcome of negotiations between the parties. (N.T. 3-39, 3-40). At the conference on April 30, 1971, City Managing Director Corleto stated that Multicon would not receive police assistance. (N.T. 3-40).
Shortly thereafter, there were a series of meetings between WAIC, PHA and Multicon. (N.T. 2-78, 3-41, 3-42, 10-39). Various changes in the Whitman Park Townhouse Project were proposed to WAIC in order to settle the controversy, including opening a building in the project as a community recreation area, reserving 50% of the units for persons who were displaced by the clearance for the Whitman project, raising the income levels of those persons who would be eligible for the project and setting up a screening committee, which would include Whitman residents, to assure that those living in the project would be an asset to the community. (N.T. 3-45, 10-43, 10-44, 10-45, 10-46, 10-47). On May 17, 1971, after full discussion and consideration of the settlement proposals, WAIC voted down the final settlement offer of PHA. (N.T. 2-89, 3-45, 3-46). On May 18, 1971, Mayor Rizzo was nominated as the Democratic candidate for Mayor. (N.T. 3-53). On May 20, 1971, a meeting was held in Judge Hirsch's chambers to consider a request by Multicon that the court's order of April 30, 1971 be lifted and that Multicon be permitted to return to work on the Whitman Park Townhouse Project. (N.T. 3-55, 3-56, 19-21, 19-24, 19-25). At the May 20th meeting, Managing Director Corleto stated that the City would not provide police assistance for Multicon should it return to work. (N.T. 3-57, 19-26 to 19-28). Mr. Gordon Cavanaugh, Chairman of PHA, stated to those present at the meeting that he had been instructed by Mayor Tate to order Multicon not to resume work. (N.T. 2-91, 3-59, 19-26, 19-34, 19-36). Judge Hirsch then signed an order permitting Multicon to return to work. However, faced with a threatened lack of police assistance, Multicon decided that it would not then return to work. (N.T. 19-38). On June 3, 1971, Multicon approached HUD in Washington, D.C. and sought assistance from HUD in building the Whitman Park Townhouse Project. (N.T. 3-69, 10-73). Multicon requested HUD to exert whatever pressure it could upon the City to get the City to cooperate in building Whitman. (N.T. 3-69, 10-73). However, a HUD official in Washington, D.C. stated that HUD did not want to take any action until after the November, 1971 election in Philadelphia. (N.T. 10-74 to 10-76).
On July 14, 1971, Judge Dwyer of the Court of Common Pleas of Philadelphia County issued a permanent injunction against further interference with Multicon's construction at the Whitman site in the case of Multicon v. WAIC, No. 4515 (March Term, 1971, C.P. Phila.) (N.T. 3-80 to 3-81). On that same day, WAIC filed a lawsuit against Multicon, WAIC v. Multicon, No. 1187 (July Term, 1971, C.P. Phila.), seeking to halt further construction at the Whitman site. Trial of this lawsuit commenced on August 4, 1971 and continued through September 6, 1971. (N.T. 9-92 to 9-93).
In the early part of April, 1971, when Multicon encountered difficulties with continuing the construction at the Whitman site, Lieutenant Fencl of the Civil Disobedience squad of the Philadelphia Police Department, who had been present at the site during the demonstration, suggested that it might be helpful if Multicon placed a fence around the site, even though the original plans did not call for such a fence. (N.T. 19-39, 19-40). Multicon contacted the Philadelphia Department of Licenses and Inspections to determine what permits were required to construct a fence and was informed that no license or permit was required. (N.T. 19-40, 19-41). Multicon then contacted the Department of Streets and submitted two plans for a fence around the Whitman site. (N.T. 19-42). Multicon was told to submit a written request to the Department of Streets. Thereafter, Multicon was given oral and written permission
to build a fence which would close off Howard and Hancock Streets, two small streets which ran only through the Whitman site, but which would keep a through street, Shunk Street, open. (N.T. 9-93, 19-49, 19-52, 19-54, 48-54). Multicon proceeded to construct a plywood fence around the construction site which was torn down by persons unknown on the night of July 5, 1971. (N.T. 9-93, 19-55 to 19-56). The policeman patrolling the area saw no one tearing down the fence. (N.T. 19-56). Thereafter, Multicon engaged a contractor to build a chain link fence with metal posts in place of the plywood fence which had been destroyed. Construction of the chain link fence began on or about August 31, 1971. (N.T. 19-58). On September 1, 1971, Multicon received a violation notice from the Department of Streets in connection with the fence and was ordered to cease construction and to remove the fence. (N.T. 9-96, 19-59). Multicon was told that the fence could not be placed on the sidewalk. (N.T. 19-61). Later in the day of September 1, 1971, WAIC picketed the fence subcontractor at his home in Delaware County. (N.T. 9-96). On September 2, 1971, Mr. Marrara of the Street Department went to the Whitman site and told Multicon that they would have to remove the fence from the sidewalk. (N.T. 48-53). Mr. Marrara testified that when he went to the Whitman site he assumed that a permit had been issued to Multicon to build a fence, although he had not seen the permit. (N.T. 48-67, 48-82). He also told Multicon that they could not close off Hancock and Howard Streets with their fence. (N.T. 9-96, 9-97, 19-64). Hancock and Howard Streets were both small streets which were completely enclosed within the Whitman site and on which there was no traffic, either vehicular or pedestrial.
(N.T. 19-64, 48-75). Within one-half hour of Multicon's refusal to remove the cemented fence posts, a city work crew with jackhammers was on the scene and, at Mr. Marrara's direction, removed the fence posts. (N.T. 19-65 to 19-66). On September 3, 1971 Multicon received two additional notices from the Department of Streets. One ordered Multicon to remove its construction equipment, mobile homes, materials and debris from the bed of legally open streets, i.e., Howard and Hancock Streets. (N.T. 19-66). All of Multicon's construction equipment referred to in the notice had been on the Whitman site since April of 1971 and was located on the streets so that the equipment would not interfere with the construction of the houses on the other areas of the site. (N.T. 19-67, 19-68). The second notice required Multicon to construct concrete sidewalks adjacent to all streets around and through the Whitman site. (N.T. 19-69). Many of these sidewalks, particularly on Howard and Hancock Streets, were in bad repair when Multicon began construction in March of 1971 and were in the same condition when Multicon received its notice in September of 1971. (N.T. 22-45, 22-63, 48-61, 48-62). The damage to the sidewalks had occurred when PHA had cleared the Whitman site. (N.T. 22-52 to 22-53). Further, the City had agreed with Multicon prior to commencement of construction that the City would repair the sidewalks adjoining the Whitman Park Townhouse Project. (N.T. 22-52, 22-53). Nevertheless, Mr. Marrara took the position that Multicon, as owner of the land, was responsible for the sidewalks. (N.T. 22-53). Finally, Mr. Marrara did agree to allow Multicon, during construction on the site, to merely blacktop the sidewalks so that equipment could operate in the area. (N.T. 22-54). Mr. Marrara stated that he only enforced the requirement that all City streets be kept open and that sidewalks be fully repaired when someone had made a complaint in connection therewith, as had been done in this case. (N.T. 22-55, 22-56).
Mr. Marrara stated that he was requiring Multicon to comply in this case because it was a center of controversy. (N.T. 22-64, 48-58 to 48-60). Further, Mr. Marrara admitted that the City generally did not enforce the fence regulations in connection with high rise construction, although there was no distinction between sidewalks around high rise and low rise projects made in the City Code. (N.T. 22-56). Finally, on September 3, 1971, after a conference with Multicon and the First Deputy City Solicitor, John McNally, the Department of Streets agreed that Multicon could erect its fence around the site precisely in the location from which the Department of Streets had previously removed it. (N.T. 22-69, 22-70). Multicon submitted a written request for a permit to construct this agreed upon fence on September 3, 1971. (Exhibit P96-10). Mr. Marrara gave written approval for the fence on September 9, 1971, stating that "At no time will any permanent barricade or fence be allowed on any . . . legally open street." Exhibit P96-11, (N.T. 48-57). The permit was also conditioned upon Multicon maintaining the footways in the area. (Exhibit P96-11).
On September 10, 1971, Multicon attempted to resume its construction of the fence but was ordered by the Department of Streets to stop until all the sidewalks were blacktopped. (N.T. 9-98). However, when the paving contractor arrived at the Whitman site, he was asked by the residents picketing along the street not to work and he honored their request. (N.T. 9-98, 22-74, 22-78). Finally, on September 14, 1971, the City ordered the construction of the fence to cease because the sidewalk was not being repaired. (N.T. 9-98). The chain link fence was never built by Multicon. (N.T. 22-77, 22-78).
Throughout Mayor Rizzo's campaign for Mayor in 1971, both during the primary campaign and the general election, he publicly took the position that within the framework of the law, he would support local communities in their opposition to public housing projects proposed for their neighborhoods. (N.T. 42-75, 42-77). Mayor Rizzo testified that, "I had a strong feeling when I ran for election, it was crystal clear, that I would preserve the neighborhoods of the City at any expense . . ." (N.T. 42-82). During his campaign, Mayor Rizzo visited Seafarer's Hall in the Whitman area, and publicly pledged his support to the community in opposition to the proposed Whitman Park Townhouse Project. (N.T. 44-77). On that same day, he placed a personal telephone call to Fred Druding, the president of WAIC, pledging his support to WAIC in their opposition to the Whitman project. (N.T. 42-76, 42-77). Mayor Rizzo further testified that he did not know what type of public housing was planned for the Whitman area, and that the particular type of public housing proposed for an area did not influence his decision to support the local community in its opposition to a housing project. (N.T. 42-79). The only consideration was whether the community supported the project or opposed it and he would support that community. (N.T. 42-79). Moreover, in considering whether to support or oppose a particular public housing project, Mayor Rizzo testified that he did not consider the racial effect of his community support. (N.T. 42-83). While stating that "there is a possibility that it might affect the minorities, that they might be shortchanged . . .", he said that such an adverse racial impact would not change his position in support of the local community. (N.T. 42-83, 42-84).
After Mayor Rizzo's election in November of 1971, he had several meetings with James Greenlee, who was at that time both general counsel for RDA and Chairman of PHA. In November of 1971, Mr. Greenlee, as general counsel for RDA, gave a legal opinion to RDA, which was subsequently forwarded to HUD on November 23, 1971, that all required procedures had been followed in the planning and development of the Whitman Park Townhouse Project, and that no further public hearings were necessary. (N.T. 9-99, 14-18).
After Mayor Rizzo was elected Mayor in November, 1971, but before he took office in January, 1972, Mr. Greenlee, as Chairman of PHA, met with Mayor Rizzo to discuss the housing program in the City of Philadelphia. (N.T. 14-23 to 14-25). Mr. Greenlee testified that the Mayor's support was necessary to develop any type of housing program in order to assure passage of the necessary ordinances before City Council. (N.T. 14-26). After discussion of the proposed public housing plans, Mayor Rizzo expressed disfavor as to the sites proposed. (N.T. 14-47). Mayor Rizzo stated that he considered public housing to be the same as Black housing in that most tenants of public housing are Black. (N.T. 14-47). Mayor Rizzo therefore felt that there should not be any public housing placed in White neighborhoods because people in White neighborhoods did not want Black people moving in with them. (N.T. 14-47). Furthermore, Mayor Rizzo stated that he did not intend to allow PHA to ruin nice neighborhoods. (N.T. 14-47, 14-48). After Mayor Rizzo took office in January of 1972, he told Mr. Greenlee that because of the promise he had made to the people of South Philadelphia in the Whitman project area, he did not want to build the Whitman Park Townhouse Project and asked Mr. Greenlee, as Chairman of PHA, to prevent the building of the project. (N.T. 14-49). The Mayor wanted Mr. Greenlee to obtain passage of a resolution by PHA declaring Multicon in default and the contract between PHA and Multicon void. (N.T. 14-54, 14-55, 14-59). Mr. Greenlee informed Mayor Rizzo that cancellation of the Whitman Park Townhouse Project would require paying Multicon for its losses and would jeopardize federal funding for the City, particularly in view of the fact that Whitman had been designated as a "match" for the Morton Addition project. (N.T. 14-50, 14-52, 14-53, 14-59). Mr. Greenlee suggested that Mayor Rizzo try to obtain a compromise in connection with the Whitman project but Mayor Rizzo stated that a compromise was not possible because the people in the area felt that Black people would be moving into the area if public housing were built. (N.T. 14-55, 14-56).
Mayor Rizzo then stated to Mr. Greenlee that the Whitman Park Townhouse Project would not be built. (N.T. 14-62). Mr. Greenlee, when faced with this statement from the Mayor, informed Mayor Rizzo of what is referred to as the Phillips Amendment.
(N.T. 12-9, 14-63). This statute provided that a municipality could cancel a public housing project if in the case of Philadelphia, City Council had a public hearing in connection with the proposed cancellation and passed a resolution revoking the original authorization for the project, and agreed to repay HUD all the money it had advanced for the project and settle any claim for damages by the builder. (N.T. 14-64, 14-65). Mayor Rizzo stated that although the cost to the City of Philadelphia of using the Phillips Amendment to terminate the project was no obstacle to its use in this case, the public hearing required by the Amendment would bring people to City Hall to protest the proposed cancellation and hence was an unacceptable procedure. (N.T. 14-65).
During the early part of 1972, there were numerous meetings between Multicon and the new Deputy Mayor Philip Carroll, who had been assigned by Mayor Rizzo to the problems surrounding the Whitman Park Townhouse Project. (N.T. 12-15, 24-3).
Mr. Carroll, during these meetings, told Multicon that the City did not want the Whitman project built. (N.T. 10-83). During this period, Mr. Carroll was pressed by WAIC to support their opposition to the Whitman Park Townhouse Project. (N.T. 24-15, 24-16, 24-53).
On May 25, 1972, Multicon again sought help from HUD to exert pressure on the City in connection with the building of the Whitman Park Townhouse Project. (N.T. 4-62).
Multicon requested that HUD take over the Whitman project. (N.T. 4-63). However, HUD stated that it was not its policy to take over projects and Multicon felt that HUD, although sympathetic, was not going to be of assistance in completing the project. (N.T. 4-63).
Therefore, Multicon told HUD that they would return to Philadelphia and commence construction of the project. (N.T. 4-63).
On April 28, 1972, RDA passed the following resolution, numbered 7973:
RESOLUTION AUTHORIZING ACTION RE: DEFAULT.
BE IT RESOLVED, By the Redevelopment Authority of the City of Philadelphia that General Counsel is authorized to take such action as may be necessary in connection with any default between Multicon Properties, Inc., provided, however, there is a representation from the Philadelphia Housing Authority of the default in its Contract for development of housing in the Whitman Redevelopment area, Whitman Urban Renewal area.
PHA never made a representation of default to RDA. (N.T. 12-16). However, on April 28, 1972, the same date as the above RDA resolution was passed, PHA Board Chairman James Greenlee wrote to Francis Meyer, former Director of RDA, informing RDA that Multicon would be in default of its contract with PHA on April 29, 1972, as follows:
This is to notify you that on April 29th Multicon Properties, Inc., will be in default in its agreement with the Philadelphia Housing Authority in regard to the parcel owned by Multicon and the Whitman Urban Renewal Area. The agreement was entered into on October 29, 1970, and Article IV, Section A, on Page 4, commits Multicon to complete its obligations within 18 months.
Multicon has not only failed to meet its obligation, but has given the Authority no indication of when, if ever, it intends to resume building. (N.T. 12-6, 12-7, 14-66).
On June 15, 1972, Multicon wrote a letter to Deputy Mayor Phillip Carroll stating that it intended to resume construction of the Whitman project on Monday, June 26, 1972. (N.T. 12-17, 4-64). This letter was sent by Mr. Carroll to Chief Deputy Solicitor, Sheldon Albert, Esquire. (N.T. 12-17). Mr. Albert, after receiving the Multicon letter from Mr. Carroll, prepared an equity action seeking a preliminary injunction against Multicon's resumption of work on June 26, 1972. The action, captioned City of Philadelphia v. Multicon Properties, Inc., Multicon Construction Corp., No. 3538 (June Term, 1972, C.P. Phila. Co.) was filed and docketed at noon on June 22, 1972. (N.T. 12-21). On that same date, Judge Hirsch, pursuant to the motion filed by Mr. Albert on behalf of the City, granted the City an ex parte five-day preliminary injunction, stopping Multicon from commencing construction on Monday, June 26, 1972, pending a hearing on June 27. The complaint, filed at noon on June 22, 1972, alleged that the commencement by Multicon of construction would "necessarily result in open and forcible conflict and will threaten the peace, welfare and stability of the community and the City" and stated that:
The defendants, further, have no legal right to construct. Its contracts and agreements with the Redevelopment Authority of the City of Philadelphia and the Philadelphia Housing Authority have terminated with defendants' failure to complete construction within eighteen months of the date of said contracts and agreements, which date has long passed, as the Redevelopment Authority this date has so stated. Further, said contracts and agreements were void ab initio, not having been the subject of community consultation as required by law. (N.T. 12-21, 12-22). (Emphasis supplied).
Also, on the morning of June 22, 1973, at about 10:00 a.m., the attorney for RDA in the then pending litigation, captioned WAIC v. Multicon, petitioned Judge Dwyer to withdraw from the jointly proposed Findings of Fact, Conclusions of Law and Brief which had been filed on behalf of PHA, RDA and Multicon. The petition was granted on June 28, 1972. (N.T. 12-22). The papers filed by the defendants had sought a finding by the Court that all the requirements with regard to citizen participation in connection with the Whitman project had been met, a position consistently maintained by RDA throughout the litigation. At the RDA meeting held on June 22, 1972, which began at 2:30 p.m., RDA passed resolution 8058 which reads as follows:
Be it resolved by the Redevelopment Authority of the City of Philadelphia that the contract entered into by and between Multicon Properties, Inc., and the Redevelopment Authority of the City of Philadelphia is hereby declared to be void ab initio due to the lack of community participation in the decision-making process as required under the various decisions of the U.S. Supreme Court, or, in the alternative, said contract presently in existence between the Redevelopment Authority and Multicon Properties, Inc., is declared to be in default, which contract became effective on July 14, 1970.
Be it further resolved that counsel duly designated by the Redevelopment Authority be authorized to pursue all legal remedies available to the Authority in order to enforce the rights of the Redevelopment Authority in accordance with the terms of the aforesaid contract. (N.T. 12-23, 4-67).
Deputy Mayor Carroll stated that the passage by RDA of the June 22, 1972 resolution was not a surprise to him because he had reviewed the resolution beforehand. He was also informed almost immediately after the June 22, 1972 meeting, first by Deputy to the Mayor Michael Wallace, and then by RDA Executive Director Walter D'Alessio, that there was a problem with the Resolution as drafted and submitted to RDA. (N.T. 24-97, 24-103, 24-107). Finally, on the evening of June 22, 1972, Michael Wallace, a Deputy to the Mayor appeared at a WAIC meeting and explained the position of the City in connection with the Whitman project and the RDA resolution of that day. (N.T. 12-24).
On June 27, 1972, Multicon filed a counterclaim in the equity action filed by the City, seeking $1.5 million for the alleged tortious interference by the City with Multicon's contracts to build the Whitman Park Townhouse Project. (N.T. 4-87, 12-29). On or about July 4, 1972, Dr. F. Bruce Baldwin, Chairman of the RDA Board, received a letter from William B. Patterson, HUD area director, who stated the position of HUD in connection with the June 22, 1972 RDA resolution. Mr. Patterson stated that "Such action is highly improper and an action that cannot receive our concurrence," and set forth the requirements for terminating an approved housing project under the Phillips Amendment. (N.T. 12-29).
On July 5, 1972, Mayor Rizzo wrote to John Whitaker, Deputy Assistant to the President for Domestic Affairs in the White House, as follows:
Many thanks for taking the time to discuss the difficulties that the City of Philadelphia is currently experiencing with the Area Office of the Department of Housing and Urban Development.
As I mentioned to you on the telephone this morning, I am sending you additional information regarding two of the most pressing problems involving two housing proposals which HUD is attempting to foster on unwilling communities.
It would appear that HUD is a prime example of carrying out a successful operation even though the patient may die as a result.
The two programs in question are:
1. Whitman Park -- a Turnkey III Public Housing Project.
2. Morrell Park -- an apartment proposal under Section 236.
The Whitman controversy appeared to be finally settled when the Philadelphia Redevelopment Authority canceled the contract with the builder, Multicon Properties, Incorporated. HUD however, is seeking in Federal Court to force construction of the project, much to my dismay, and has threatened other possible sanctions against the City as shown in the attached letter received today from William Patterson, HUD Area Director.
Although Patterson states in his letter that he seeks to protect the interest of the taxpayers, it would appear that he is doing exactly the opposite.
The City Administration has a recognized responsibility to the people of Philadelphia and can not shield itself behind any bureaucratic regulations, as in the case of certain HUD officials who apparently are unmindful of our problems and the practical realities of urban government.
I most certainly will appreciate any help you can give in these two cases and, again, many thanks for your cooperation. (N.T. 12-30, 12-31, 12-32).
Shortly thereafter, HUD's general counsel, David Maxwell, Esquire, gave instructions by telephone to HUD Regional Director Theodore Robb to keep a "low profile" in the Whitman controversy. (N.T. 12-32, 12-33).
Following receipt from HUD of the Patterson letter, the RDA director and executive director consulted with Leon Katz, Director of the RDA Legal Division, who had not participated in the drafting of the June 22, 1972 resolution. (N.T. 12-33). As a result of the conference, the following resolution, No. 8061, was drafted to amend the June 22, 1972 resolution, and was adopted at a special RDA meeting held on July 12, 1972 at 2:15 p.m. (N.T. 12-33, 4-74).
Be it resolved by the Redevelopment Authority of the City of Philadelphia that Resolution No. 8058, adopted by the duly constituted Board of the Redevelopment Authority on June ...