Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 72 C 1453 -- Nicholas J. Bua, Judge .
Before Pell and Sprecher, Circuit Judges, and Ackerman, District Judge.*fn*
The sole issue in this appeal, although variously phrased in different objections, is whether the district court properly approved and entered a consent decree terminating the seven-year Arlington Heights exclusionary zoning dispute. We conclude that the court acted properly and affirm.
Metropolitan Housing Development Corporation (MHDC), a nonprofit corporation organized for the purpose of developing low- and moderate-income housing throughout the Chicago metropolitan area, and individual plaintiffs brought this action alleging that the refusal of the Village of Arlington Heights to rezone a 15-acre tract of land for multiple-family use was racially discriminatory in violation of the Fourteenth Amendment and the Fair Housing Act of 1968, 42 U.S.C. § 3601 et seq.*fn1
After a bench trial, the district court entered judgment for Arlington Heights, 373 F. Supp. 208 (N.D.Ill.1974). This court reversed, finding that the "ultimate effect" of the denial was racially discriminatory, and that the refusal to rezone therefore violated the Fourteenth Amendment. 517 F.2d 409, 414-15 (7th Cir. 1975).
The Supreme Court reversed, holding that although we had concluded that Arlington Heights' zoning decision had a racially discriminatory effect, under Washington v. Davis, 426 U.S. 229, 96 S. Ct. 2040, 48 L. Ed. 2d 597 (1976), decided after our opinion, a showing of discriminatory intent was a prerequisite to establishing a violation of the Equal Protection Clause. Since we had affirmed the district court's finding that there was no discriminatory purpose behind the refusal to rezone, the Supreme Court held that the plaintiffs had suffered no deprivation of their constitutional rights. 429 U.S. 252, 97 S. Ct. 555, 50 L. Ed. 2d 450 (1977).
The Supreme Court then remanded the case for a determination of whether Arlington Heights' conduct, although constitutionally unassailable, violated the Fair Housing Act. In our first opinion we had not decided the statutory question because, although plaintiffs' complaint alleged violation of the Fair Housing Act, they had not pursued the statutory claim either in the district court or before us.
Upon remand, we reaffirmed our earlier holding that the village's refusal to rezone had a discriminatory effect. In the second opinion we were required to determine whether the refusal to rezone with a discriminatory effect violated the Fair Housing Act although accomplished without discriminatory intent. MHDC had attempted to effectuate, within Arlington Heights, the national policy of integrated housing through development of its own property without any requirement of active village involvement, financial or otherwise. We concluded that although Arlington Heights was acting within its proper state zoning authority, its action had frustrated MHDC's efforts. 558 F.2d 1283 (7th Cir. 1977).
Upon our remand to the district court, we held that inasmuch as Arlington Heights has a standing obligation under the Fair Housing Act to refrain from perpetuation of zoning policies that effectively foreclose construction of low-cost housing, the district court should require the village to identify a parcel of land within its boundaries which is both properly zoned and suitable for low-cost housing under federal standards. "If defendant fails to satisfy this burden, the district court should conclude that the Village's refusal to rezone effectively precluded plaintiffs from constructing low-cost housing within Arlington Heights, and should grant plaintiffs the relief they seek." 558 F.2d at 1295 (footnote omitted). The Supreme Court denied certiorari in 434 U.S. 1025, 98 S. Ct. 752, 54 L. Ed. 2d 772 (1978).
After the case reached the district court on remand, the court called the matter for a status report on March 9, 1978, and was advised by the parties that negotiations for settlement were pending and that the case would probably be resolved by a consent decree. After several other status-report hearings the court was advised on June 1, and on June 22, 1978, that a consent decree had been agreed upon by the parties. On June 30, the Village of Mount Prospect moved to intervene as a defendant in order to object to the entry of the proposed consent decree. 469 F. Supp. 836 at 843.
On July 5, 1978, the Board of Trustees of Arlington Heights held an open meeting to receive public comment on the proposed consent decree, which the Board had previously developed in closed sessions based upon negotiations carried on among the parties' lawyers. Addressing the Board at the meeting which began at 8:08 p. m. was the Mayor of Mount Prospect, who requested additional time to review the proposed decree inasmuch as it involved property bordering on her village. One of the attorneys representing Mount Prospect addressed the meeting at length. About 30 citizens of Arlington Heights and Mount Prospect spoke, as did representatives of the League of Women Voters, the Northwest Opportunity Center, the Congress of Maine Township Homeowners Association and the Forest View Civic Association. Most of the members of the Board of Trustees also addressed the meeting. By a vote of seven to one, the Board approved the proposed consent decree and the meeting adjourned at 11:04 p. m.
On August 21, 1978, the district court granted Mount Prospect, in its corporate capacity as a representative of its residents, permissive intervention. On August 24, the court allowed Forest View Civic Association and six individuals, all of whom were either property owners or representatives of owners of land north and west of the affected property, to intervene as defendants. On September 18, the Surrey Ridge Homeowners Association, the Heritage Park Community Association, Inc., and three individuals, all owners or representing owners of neighboring land, were given leave to intervene. 469 F. Supp. at 844.
The district court held three days of hearings on September 25, 27 and 29, 1978. Attorneys appeared on behalf of the plaintiffs, Arlington Heights, Mount Prospect, the Forest View Civic Association and the Heritage Park Community Association. The court heard 19 witnesses and the intervenors caused 23 exhibits to be introduced, including 24 photographs introduced under two exhibit numbers. The parties were allowed to file proposed findings of fact and conclusions of law as well as briefs.
On April 2, 1979, District Judge Bua issued his findings of fact, conclusions of law, opinion and order entering the consent decree, which appear in 469 F. Supp. 836-69. The consent decree which he approved appears in 469 F. Supp. 869-73. Judge Bua analyzed the decree as it was proposed, in the light of the objections offered, with such commendable and painstaking detail that we adopt, as well as affirm, his opinion except insofar as this opinion of affirmance may add to or vary its language. Because the objections of the intervenors overlap to a considerable degree and raise broad issues, it is necessary to deal with them to some extent from the viewpoint of overall policies which affect them all.
Intervenor Mount Prospect has raised four objections: (1) the district court did not have jurisdiction or authority to enter the consent decree; (2) the decision of Arlington Heights to approve the consent decree abridged Mount Prospect's right to procedural due process; (3) Arlington Heights' approval was procedurally and substantively unlawful; and (4) the district court's decree "improperly intruded judicial authority into the legislative process." Intervenor Forest View Civic Association adopted Mount Prospect's objections and added (5) that the property to be annexed and rezoned was not originally in Arlington Heights but instead adjoins properties of intervenors.
The original 15-acre parcel was part of an 80-acre tract just east of the center of Arlington Heights owned by the Clerics of St. Viator, a religious order, whose high school and novitiate building occupied part of the site. All the land surrounding the Viatorian property had been zoned R-3, a single-family specification with relatively small minimum lot-size requirements. On three sides of the Viatorian land there were single-family houses just across a street; to the east the Viatorian property directly adjoined the backyards of other single-family homes. 429 U.S. at 255, 97 S. Ct. at 558.
The plans for the original site called for clustered townhouse units for low- and moderate-income tenants housed in 20 two-story buildings with 190 units, each unit having its own private entrance from the outside. One hundred of the units would have a single bedroom, thought likely to attract elderly citizens. The remaining 90 units would have two, three or four bedrooms. A large portion of the site would remain open, with shrubs and trees to screen the homes abutting the property to the east. 429 U.S. at 254, 257, 97 S. Ct. at 559.
The alternate site provided for in the consent decree consists of 26 acres of vacant property located in an unincorporated area of Cook County between Arlington Heights and the Village of Mount Prospect, presently classified partially C-2 Commercial and partially R-5 Single Family Residence use under the Cook County Zoning Ordinance. Under the terms of the consent decree 14 acres of the property would be developed for commercial use by an independent developer and would include two restaurants. 469 F. Supp. at 843, 870.
The remaining 12-acre parcel would be developed to consist of one four-story building with 109 one-bedroom rental apartments available to elderly persons and one two-bedroom apartment available for the apartment manager. Attached townhouses two-stories high would consist of 20 one-bedroom, 40 two-bedroom and 20 three-bedroom units, all available for family use. 469 F. Supp. at 871.
The total parcel involved is bounded on the north by Lawrence Lane and by Prairie Park, a 10-acre park which is part of the Arlington Heights Park District, on the east by a vacant parcel of land lying north and west of St. Cecilia Catholic Church, on the south by Golf Road, and on the west by Belmont Avenue, extended from its present location adjacent to the western boundary of Prairie Park to Golf Road. 469 F. Supp. at 843. The original site had existing single-family use on three sides and an institutional use on the fourth side. The new site has an institutional use on one side, vacant and park land on one side, a four-lane highway on one side, and some residential use on the fourth side.
The Cook County Comprehensive Plan, which is the county's long-range projection of land use, recommended that the property fronting along Golf Road be used for commercial purposes and that the remaining portion be used for multiple-family purposes. Tr. 360-61. The single-family classification assigned to part of the property by the Arlington Heights Comprehensive Plan was merely a "holding zone" open for negotiation with a subsequent developer. 469 F. Supp. at 867. Along Golf Road but to the south of the street (the subject property lies to the north of Golf Road) there is a "mirror image" of the consent decree development, employing commercial uses along the road and multiple-family use behind it in a 30-acre planned unit development. Tr. 364.
About 80% of the perimeter of the subject property is currently zoned for single-family residence. However, there was testimony and the district court found that many other land uses are compatible with single-family housing; that all single-family housing cannot be surrounded on all sides by other single-family housing; that the use planned for the subject property follows a natural zoning progression from more intensive to less intensive uses from arterial road, to commercial use, to multiple-family housing, to single-family housing; that there are many instances of single-family residences adjoining multiple-family units within two miles of the subject property; and that there is other multiple-family housing within 600 feet of the site. 469 F. Supp. at 866.
In the present posture of this case, there is no longer an issue of the interest of a state or its municipality versus the national interest; the local and national governmental interests are now aligned together against the alleged rights of individual neighboring landowners and of an adjoining village. The changed alignment of interests from that formerly existing requires us to analyze the various interests and the policies they represent in terms of national policies supporting open housing, state and local policies supporting the actions required of Arlington Heights by the consent decree, and the policies supporting the use of consent decrees which effectuate the amalgam of the national and local interests in housing cases such as this.
Congress has declared in the Fair Housing Act*fn2 that "(it) is the policy of the United States to provide, within constitutional limitations, for fair housing throughout the United States." 42 U.S.C. § 3601. Section 3604(a) of the Act provides in part that "it shall be unlawful . . . (to) . . . make unavailable or deny, a dwelling to any person because of race, color, religion, sex, or national origin."
Arlington Heights' prior refusal to rezone the original site constituted a violation of § 3604(a) "if there is no land other than plaintiffs' property within Arlington Heights which is both properly zoned and suitable for federally subsidized low-cost housing." 558 F.2d at 1294. The burden of identifying such a parcel of land within Arlington Heights was placed upon Arlington Heights. By failing to do so and by entering into a consent decree agreeing to annex and rezone property then outside of Arlington Heights, the defendant village in effect conceded that there was no property then within Arlington Heights which was both zoned and suitable for low-cost housing. Absent the consent decree, Arlington Heights was subject to having imposed upon it the relief which the plaintiffs sought.
The language of the Fair Housing Act is "broad and inclusive," subject to "generous construction," and "complaints by private persons are the primary method of obtaining compliance with the Act." Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 209, 212, 93 S. Ct. 364, 366, 34 L. Ed. 2d 415 (1972). Generally, and particularly in a fair housing situation, the existence of a federal statutory right implies the existence of all measures necessary and appropriate to protect federal rights and ...