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SIS. OF PROV. OF ST. MARY v. CITY OF EVANSTON

October 28, 1971

SISTERS OF PROVIDENCE OF ST. MARY OF THE WOODS ET AL., PLAINTIFFS,
v.
CITY OF EVANSTON ET AL., DEFENDANTS.



The opinion of the court was delivered by: Marovitz, District Judge.

  MEMORANDUM OPINION

MOTION TO DISMISS

This is a multi-faceted suit, involving several plaintiffs and plaintiff organizations who allege that their civil rights under various Federal Statutes and the Constitution of the United States have been violated and that the property rights guaranteed by the Constitutions of the United States and Illinois have been similarly violated. This suit is an outgrowth of the Evanston City Council's refusal to rezone property in a white neighborhood from a lower density R5 zone permitting a maximum of 157 units to a higher R5A zone which would allow the building of the 360 unit development proposed by plaintiff Interaction, a major part of which will be Federally subsidized low and moderate income housing.

Plaintiffs are the Sisters of Providence (Sisters) the present owner of the tract of land; Interaction, Inc. (Interaction) a limited corporation formed for the purpose of increasing the supply of low and moderate income housing in the Chicago area, who sought to purchase the property owned by Sisters provided that higher density zoning was obtained; Evanston Neighbors at Work (Neighbors), a not-for-profit corporation formed for the purpose of organizing low-and-moderate income housing in Evanston; Evanston Housing Center (Center) a not-for-profit association with goals similar to Neighbors; and individual plaintiffs, Debbie Higgins, Donna Hyde, and Hattie Taylor, black residents of Evanston who live in substandard housing, are prospective tenants for the low and moderate income housing planned by Interaction, and who are bringing suit for the class of all individuals similarly situated.

The case is presently before this Court on defendant's motion to dismiss based on lack of jurisdiction, standing problems as to each plaintiff, lack of jurisdictional amount, failure to state a cause of action under the various constitutional amendments and statutes cited and failure to exhaust administrative remedies.

I.

Plaintiff Sisters is the owner of an approximately nine-acre tract of land in the City of Evanston and until June 1970 had operated Marywood High School on the property in question. On July 1, 1970, Sisters entered into a contract for sale of this property to Interaction for $1.9 million upon the condition that the property be rezoned from the lower density R5 permitting a maximum of 157 units to a higher density R5A designation, or that construction of a 360-unit housing development be otherwise permitted by the Evanston City Council. (Complaint p. 10). Interaction proposes to build a housing development of 360 units, with 200 of these units subsidized for low and moderate income families and individuals under § 236 of the National Housing Act of 1968.

On August 31, 1970 Plaintiff Sisters on behalf of itself and Interaction petitioned the City Council of Evanston to rezone the subject property from R5 General Residence District to R5A General Residence District. After public hearing, the Zoning Amendment Committee on February 5, 1971 recommended that the petition be denied stating that the subject property required Special or Controlled Development District regulation in order to insure adequate city control over the development. On March 25, 1971 the City Council adopted the Zoning Amendment Committee's recommendation and denied Sisters' rezoning petition by a 10-7 vote.

Plaintiffs claim that it is not economically feasible to build a low and moderate income housing development under present zoning on subject property; that this property is the only parcel of land available for such development; that there is an urgent need for such housing in Evanston; that Black persons represent a substantial percentage of residents who suffer from inadequate housing and thus would benefit most from the proposed development; and that the practices of Evanston in its handling of zoning and housing problems including its refusal to rezone the Marywood property has had the effect of perpetuating racial segregation in that city in violation of various statutes. Plaintiffs claim that these actions violate the Thirteenth Amendment and Fourteenth Amendment of the United States Constitution; the Civil Rights Act of 1866 (42 U.S.C. § 1981, 1982); the Civil Rights Act of 1871 (42 U.S.C. § 1983); the Civil Rights Act of 1964 (42 U.S.C. § 2000d); the Fair Housing Act of 1968 (42 U.S.C. § 3601 et seq.) and the equal protection and due process clauses of the Fourteenth Amendment (Count I).

Plaintiffs Sisters and Interaction claim in addition that Evanston's actions have arbitrarily denied their Fourteenth Amendment right to use property in which they have an interest. (Count II).

II.

Two extremely important caveats must be kept in mind in considering this case. While precedent is surely the keystone in delineating the legal framework and constitutional categories that this complaint might fall under it must be noted that cases of racial discrimination that raise issues of equal protection — due process denial and invalid exercise of police power are not fungible pegs that can summarily be slipped, on a factual level, into previously carved precedential slots. Since the crux of this genre of cases depends on the delicate balancing of infringed right against police power any fact unique to a certain case may tip the balance in favor or against one side and, consequently, one must be wary of relying on mere hypotheticals or remote analogies. This leads us to a second consideration also regarding facts. This case is before us on a motion to dismiss and undeniably the threshold of facts sufficient to survive such a motion is far lower than that required to ultimately carry the day. Under the Federal Rules on a motion to dismiss ". . . a complaint should be construed in the light most favorable to plaintiff with all doubts resolved in his favor. . . ." Jung v. K. & D. Mining Co., 260 F.2d 607 (7th Cir. 1958); "the material allegations of the complaint are taken as admitted . . ." and "the complaint should not be dismissed unless it appears that appellant could `prove no set of facts in support of his claim which would entitle him to relief'" Walker Process Equipment, Inc. v. Food Machinery Chemical Corp., 382 U.S. 172, 86 S.Ct. 347, 15 L.Ed.2d 247 (1965) and Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) as cited in Jenkins v. McKeithen 395 U.S. 411, 421-422, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969). It is especially in civil rights disputes that we ought to be chary of disposing of the case on pretrial motions and courts do in fact have a prediliction for allowing civil rights cases to proceed until a comprehensive record is available to either support or negate the facts alleged. "Summary judgment is rarely, if ever, appropriate where, as here, motive and intent are important to a resolution of the issues and never where, as here, serious questions of fact remain unresolved, as, for example, the racial composition of the neighborhoods involved." Gautreux v. Chicago Housing Authority, 265 F. Supp. 582, 584 (N.D.Ill. 1967). See also Escalera v. New York Housing Authority, 425 F.2d 853 (2nd Cir. 1970). Many of the cases cited by both sides deal with disposition at a juncture chronologically much later in the judicial process, indicating that the causes involved survived initial motions to dismiss. Defendants argue that this is a "garden variety" zoning case but it is this "garden variety" case that has a way of suddenly sprouting strange fruit when the proofs are in and thus the facts alleged must be carefully weighed.

It is within this framework that we approach the merits of the case.

III.

Standing, Jurisdiction, Jurisdictional Amount.

We hold that all plaintiffs have standing to sue subject to the condition that should it be proven at a later stage that the rights in issue are sufficiently represented by some of ...


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