Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 71 C 587 -- Hubert L. Will, Judge.
Before CUDAHY and COFFEY, Circuit Judges, and GRANT, Senior District Judge.*fn*
GRANT, Senior District Judge. In March, 1971, ten individual plaintiffs, some of whom resided in DuPage County, Illinois, and others who lived in the Chicago metropolitan area, and HOPE, Inc., a DuPage County based not-for-profit fair housing organization, filed suit against DuPage County, the members of its County Board and certain landowners and land developers in DuPage County claiming deprivation of rights protected by the Thirteenth and Fourteenth Amendments of the Constitution and 42 U.S.C. §§ 1981-1983, 1985(3) and 2000(d). Jurisdiction was based on 28 U.S.C. §§ 1331 and 1343.
The second amended complaint, filed in September 1972, alleged that DuPge County and large land developers had engaged in a practice of exclusionary housing whereby all new housing units in the County were built for and sold or rented to the relatively wealthy. The net result of the County's alleged use of its state-delegated housing regulatory policy and the contractor's construction policy was that poor and black persons were denied the opportunity of housing in DuPage County. This denial of housing resulted in the perpetuation and increase of racial and economic segregation in the Chicago metropolitan area. It was alleged that those housing practices were intentionally discriminatory and that there was a conspiracy among the defendants to deprive the plaintiffs of their constitutional rights. HOPE, Inc. alleged that it represents those persons whose rights were violated.
It is the contention of the plaintiffs throughout this litigation that DuPage County used its power to regulate land use in a manner which benefited only the wealthy. It is contended that the County's zoning ordinance unreasonably increased the cost of all housing, thus affecting the development of low and moderate income housing, and that this prevented the housing of blacks and other minorities.
Under the County Zoning Ordinance, multi-family housing is permitted in the B-4 commercial classification without a special permit. District Opinion at 40. Multiple family housing units can be built as a special use in R-3 residential districts, but there is a minimum gross area requirement of five acres. Id. The requirement of a special use permit has no rules or standards governing the determination of the permit. The plaintiffs contend this unfettered discretion by the County results in the developers tailoring their multi-family developments in such a manner as they believe the County would approve. The plaintiffs contend that public statements of County officials and the questions and the statements of County officials at zoning hearings evidenced a discriminatory attitude toward low and moderate income persons and such statements in turn influenced land developers.
DuPage County is due west of the City of Chicago and is governed by an elected twenty-five member Board of Supervisors ("County Board"). Illinois law authorizes the County to enact zoning ordinances regulating land use in the unincorporated areas of the County. Ill. Rev. Stat. ch. 34, §§ 3151-3162 (1982). Approximately 40% of the total area of the county is unincorporated and subject to the County Zoning Ordinance. Opinion at 30.
The District Court found that:
DuPage County, measured by per capita income, is the fourth richest county in the United States. It has the lowest percentage of inexpensive housing, both owner-occupied and rental, of any county in the eight county Chicago Metropolitan area. In 1970, of all the counties in the United States, DuPage had the lowest percentage of its population living at or below the poverty level.
DuPage County is also predominantly white. In 1970, there were 1,276 black persons residing in DuPage County households, representing 0.26% of the total household population of the county.
DuPage County's population in the two decades 1950-1970 grew from 150,052 to 485,181, an increase of 223%, the largest of any of the eight counties in the Chicago Metropolitan area. . . . While the population increase in the other counties of the Chicago Metropolitan Area has resulted primarily from natural growth, DuPage County is uniquely the recipient of white persons migrating from Chicago.
[D]uring the period 1964-1970, jobs increased from 56,973 to 108,819, or 91%, but 30.2% of those working in DuPage County in 1970 lived outside the County, the highest in any of the six Illinois counties in the Chicago Metropolitan area.
The County Board, in the exercise of its delegated powers, has created several committees, one of which is the Zoning Committee. In addition, there is a Zoning Board of Appeals ("Zoning Board") consisting of seven members appointed by the County Board Chairman and approved by the Board to serve for five year terms. The Zoning Board hears all requests for zoning changes, variations and special uses. The Zoning Board's recommendation, together with the file and transcript of any hearings, are sent to the Zoning Committee for its recommendation. After this Committee's review and recommendation, the County Board takes final action upon the request.
The Zoning Committee and County Board customarily ratify the Zoning Board recommendations and the County Board usually incorporates verbatim the letter of the Zoning Board in the ordinance which it enacts. It is clear, therefore, that the factors and criteria utilized by the Zoning Board have been and are accepted and approved by the County Board in virtually all cases.
In 1942, the County Board authorized the creation of the DuPage County Housing Authority. The Housing Authority, composed of five members appointed by the Chairman of the County Board, has a staff of two -- a director and an administrative assistant. The Housing Authority has the authority to plan, construct, operate and seek federal and state funds for the developing of housing projects for persons who lack the income necessary to enable them to live in available decent, safe and sanitary dwellings without over-crowding. Since its creation in 1942, the Housing Authority has not constructed any multiple-family housing projects in DuPage County. The district court found the Housing Authority ". . . enjoys the distinction of having done less for fewer people over a longer period of time than any other such authority." Id. at 69.
The plaintiffs include HOPE, Inc. and ten individuals authorized by an order, entered September 21, 1972, to maintain this action as representatives of a class of persons whose income levels were sufficiently low to make them eligible for publicly assisted housing under the 1934 Illinois Housing Authorities Act, Ill. Rev. Stat., ch. 67 1/2, P1, et seq. (1971), or for federally subsidized housing under 12 U.S.C. §§ 1715l (d)(3), 1715z and 1715z-1.
HOPE, Inc. is an Illinois not-for-profit corporation whose purposes are described in its Articles of Incorporation as:
(1) To promote social situations which foster the health and welfare of the poor and underprivileged and in furtherance of this purpose, the corporation shall have the power to acquire improved residential property in order to make the same available for use as dwelling places for those families or individuals unable to obtain adequate housing due to financial hardship;
HOPE's purpose has been to promote adequate housing for persons with low and moderate incomes. Until 1975, HOPE provided the only low rent housing available in DuPage County. HOPE maintains a list of the relatively few federally subsidized units in DuPage County for moderate or low income families and refers families to any available units.
Each of the individual plaintiffs, prior to the time of filing this lawsuit, had contacted HOPE for assistance in finding adequate housing in DuPage County. Through HOPE, several of the plaintiffs have found adequate housing while the others were, as of October 1, 1981, the date of the District Opinion, still seeking adequate housing. All plaintiffs, except one, are or were residents of DuPage County.*fn1
By agreement of the parties, the district court, in July 1976, ordered the parties to exchange proposed stipulations of facts and evidence which would facilitate a prompt presentation of the evidence and a substantially agreed upon record. Pursuant to that order, the parties in April 1977 filed Stipulations of Evidence consisting of eight volumes, or approximately 2800 pages of stipulated facts, allegations deemed admitted, interrogatories and answers, depositions and statements of facts to which witnesses, if called upon, would testify. After this filing, the parties filed Statements of Objections to the evidence and the parties cross-examined by deposition those persons whose testimony was introduced by written statement into the record. The parties then filed Supplemental Stipulations of Evidence filed August 1979. The district court conducted hearings on October 31, November 1, 6, 7, 1978, during which the parties cross-examined an agreed upon number of called witnesses. During this time, the district court sought an amicable, negotiated disposition of the controversy through the conciliation services of the Community Relations Service of the Department of Justice and through the court's own efforts. In December 1980, it was concluded that no negotiated disposition was possible.
On October 1, 1981, Senior District Judge Hubert Will concluded in his Findings of Facts, Conclusions of Law and Opinion that the County defendants (DuPage County and the members of the DuPage County Board) had knowingly and intentionally pursued housing policies and practices intended to and effectively having excluded persons of low and moderate income and racial minorities from residing in the County. The district court found no conspiracy by developers and the County. It was concluded that the plaintiffs and members of the plaintiff class had suffered and continue to suffer irreparable harm from these County policies and practices.
On February 3, 1982, the district court entered its Judgment and Decree. The Decree enjoined the enforcement of provisions of the DuPage County Zoning Ordinance governing lot size, minimum acreage, parking, setback, side yard width, front yard depth, minimum areas for trailer parks and density with respect to low and moderate income housing projects. Decree P(A)-(B). Special use permits for planned developments and multifamily dwellings for low or moderate income housing will not be required. Id. P(C). The County was prohibited from examining zoning applicants regarding prices that would be charged for the housing or the projected value of or estimated tax review to be realized from a residential development. Id. P(D). Within ninety (90) days of the Decree, the county, in consultation with HOPE, Inc., was ordered to develop a ten-year plan to significantly increase the number of housing units for low and moderate income families. If the parties could not agree upon a plan, the court would assist in resolving the question. Id. P(E). The court additionally required quarterly reports to March 1992 both from the County and from HOPE, Inc. upon the implementation of the decree. Id. P3. The court specifically found that:
[i]t is the purpose of this decree to assure that a meaningful amount of housing for families with low and moderate incomes is actually developed in DuPage County and that, at a minimum, the amount of new housing for families with low and moderate incomes equal the goals that the County has purportedly set in various Housing Assistance Plans filed with the United States Department of Housing and Urban Development.
Id. P4. Defendants' motions for stays of this decree were denied by the district court and this Court of Appeals.
District Court's Findings Regarding DuPage Land Development and Planning Policy
The district court, following the Supreme Court approach in Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 50 L. Ed. 2d 450, 97 S. Ct. 555 (1977), examined a number of sources of information in order to determine what was the policy and purposes of the County in its land development and planning policy. The court considered statements of public officials, reports of publications, actual decisions of County agencies, as well as reasonable inferences which can be drawn from all the factors. The court also found relevant what persons, such as land developers who dealt with the County Committees, understood the applicable policy to be.
The district court considered:
1. Statements made in 1971 by James H. Clark, Collector and Treasurer of DuPage County, which appeared in the Chicago Tribune. Mr. Clark, collaborating with Casey Banas, editor of the Perspectives section of the Tribune, wrote an article entitled "Suburbia High Taxes, the Dream Becomes a Nightmare" in which the following statement was made:
Another new issue in the suburbs is housing for low income people. Low income housing in DuPage County is like buying a case of cancer. It would result in too many people with too little tax revenue to pay for the services -- again primarily schools -- needed by these people.
Opinion at 44. In an earlier Tribune article, Mr. Clark was quoted as saying: "DuPage County cannot afford low and moderate income housing. To invite such housing into the county is as foolish as "trying to buy cancer." Id. The Clark-Banas article was reproduced and 40,000 copies were distributed. Mr. Clark in his own deposition indicated that similar statements were made hundreds of times to the people of DuPage County. Stip. of Evid. P530, p. 1090. While Mr. Clark was the Treasurer of DuPage County and not on the Zoning Committee or Board, he did make direct recommendations to the Zoning Board. He opposed a variation in the zoning for a development which would have included three-bedroom apartments.*fn2 After the three-bedroom units were withdrawn, Clark wrote a letter to the Chairman of the Zoning Board recommending approval. Included in his letter was a copy of the Clark-Banas article. In his letter of recommendation, Mr. Clark wrote:
The property I am referring to is the last one of the remaining open spaces that can be used to generate the large tax asset without the influx of a great number of children.
Id. at 47. The application, as revised, was approved by the Zoning Board.
2. Gerald R. Weeks, a member of the County Board from 1963 and selected Chairman in 1970, was quoted in the March 31, 1971 edition of the local supplement of the Chicago Tribune responding to the NAACP's announcement of its plans to construct an integrated city of low and moderate income housing in DuPage County. Mr. Weeks was quoted as saying:
The article further reported:
Weeks said the County Board is elected by the people and usually responds to the wishes and demands of the people. He said all planned-unit developments require zoning charges of the type that by the law must be preceded by public hearings.
Stip. of Evid. P60(6)-(I), pp. 187-89.
3. Fred Koebeman, a member of the County Board and Zoning Committee, "was asked at a public hearing whether he favored the proposed NAACP project and [he] replied flatly "no"." Opinion at 49. The NAACP project was never submitted to the County.
4. In January 1970, the City Council of the City of Wheaton in DuPage County requested the cooperation of the DuPage County Housing Authority in the development of a public housing project in Wheaton to be constructed with the financial assitance of the Department of Housing and Urban Development (HUD). On March 5, 1971, the Executive Committee of the DuPage County Board, headed by Mr. Clive Gleason, met with the Wheaton City Manager, the City Attorney and the Wheaton Director of Building and Planning to discuss the Wheaton application for HUD funds. The Executive Committee requested that the Wheaton application be divided into two parts, one part requesting housing for the elderly and the second requesting low income family housing. Mr. Gleason stated that there was no problem regarding the housing for the elderly, but they did not want housing for low income families. Stip. of Evid. P701, p. 1292; Opinion at 54. The Executive Committee told the Wheaton officials that the County Board members and their constituents would oppose low income family housing. Id. The Wheaton proposal then became an issue in the spring 1971 elections for the Wheaton City Council. In that election, a slate of candidates who opposed the proposal was elected and, subsequently, authority to apply for HUD funds was revoked by the Wheaton City Council.
5. The district court also examined various questions asked and public statements made by members of the Zoning Board and Zoning Committee to discern the intent and the purpose of the County land development policy. It was admitted by the County planning director that there was no written or published criterion to be applied to applications for zoning changes for multifamily construction. Accordingly, the court found that the only evidence of a zoning criteria could be found in the statements and actions of the Zoning Board members and the planning director.
The plaintiffs examined the DuPage County zoning files from June 1963 to April 1976 with respect to residential developments with ten or more housing units. This study revealed that: (1) the question of what amount of taxes a development would generate was discussed in 65% of the zoning files; (2) the effect of a development upon nearby property value was discussed in 88% of the zoning files; and (3) no file contained reference to the racial composition of the proposed residents. Opinion at 56.
The district court found that the effect of a development upon school costs and budgets was a prime concern of the County Board. Developers, to satisfy the school boards and the Zoning Board, offered substantial donations to the school boards or restricted the number of units with three or more bedrooms, thus limiting the number of children in a development. One applicant indicated, in response to an inquiry from the Zoning Board, that he would limit family sizes in his project by confining sales to those persons 52 years or older.Id. at 59.
b. Effect upon Neighboring Property
All parties agree that the prices of housing units, either rental or for sale units, should not be considered in zoning variation or special use applications, yet 84% of the files examined contain a statement of unit price. Frequently, the unit price information was elicited by a Zoning Board member. The district court found several reasons why price was a concern. First was the concern over school costs.Higher priced housing brought in high income, older residents with fewer children while lower priced units brought lower income, young people who had more children. Id. at 62. The court found, additionally, the notion that higher priced housing attracted higher class residents.
It is the plaintiffs' contention that Board members references to: "higher grade of people," "[p]eople that you don't have to worry about having so many services for," "I can think of a lot of people, . . . that I wouldn't want living out here," and "the type of people that would live in this place," are thinly veiled references to race.
6. In 1976, there were approximately 11,500 families classified as low or very low income and an additional 25,000 families classified by HUD as "lower-income" households. But there are a negligible number of housing units for low and moderate income families in DuPage.The majority of those that do exist are limited to senior citizens. Id.at 68-69.
In 1978, during the pendency of this action, the County Board reversed a prior vote and rejected $710,000 in HUD Block Grant funds for a Glendale Heights project. The original proposal had called for housing for the elderly, but this had been changed to include a modest eight family-housing unit which was opposed by the County Board. Ruth Kretchmer, a member of the County Board, appeared at a Glendale Heights public meeting and indicated that the County Board would approve the project only if there was "overwhelming" support from the community for the proposal. The Glendale Heights project was never resubmitted for consideration.
7. The district court considered the following statistical information regarding cost of housing and the racial balance in the County of DuPage and the unincorporated areas of DuPage County as of 1970.
Whole County Unincorporated
$100-$150 per month 25.8% 7.3%
$150-$200 per month 42.9% 40.2%
Greater than $200 22.6% ...