City of Pleasant Grove v. United States

623 F. Supp. 782, 1985 U.S. Dist. LEXIS 14506

• Court: District Court, District of Columbia
• Decided: October 25, 1985
• Docket: Civ. A. 80-2589
• Status: Published

Opinions

OPINION

HAROLD H. GREENE, District Judge.

On October 9, 1980, the City of Pleasant Grove, a community in Jefferson County, Alabama, brought this action under section 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c, seeking a declaration that the annexation by the city of the so-called “Western Addition” did not have the purpose or effect of denying or abridging the right to vote on account of race or color. In March 1982, plaintiff moved for summary judgment,¹ and on August 3, 1983, after a hearing, the Court denied plaintiffs motion. City of Pleasant Grove v. United States, 568 F.Supp. 1455 (D.D.C.1983).

The Court’s opinion on the motion and Judge MacKinnon’s dissent focused on the question whether a community without black voters would be in violation of the Act by annexing areas inhabited by whites while refusing to annex similarly situated, contiguous areas inhabited by blacks. On that issue, the Court held that, in the context of annexation, a violation occurs upon a showing of discriminatory purpose alone, and that it was not significant in terms of the Voting Rights Act that, since there were no black voters in the City of Pleasant Grove, there could be no dilution of the voting rights of blacks and hence no discriminatory effect. The Court further decided that a political entity may not annex adjacent white areas while applying a wholly different standard to adjacent black areas and failing to annex them based upon that discriminatory standard. 568 F.Supp. at 1460.

That decision is, of course, the law of the case. Fogel v. Chestnutt, 668 F.2d 100, 108-09 (2d Cir.1981); Handi Investment Co. v. Mobil Oil Corp., 653 F.2d 391, 392 (9th Cir.1981); Major v. Benton, 647 F.2d 110, 112 (10th Cir.1981); United States v. Fernandez, 506 F.2d 1200, 1204 (2d Cir. 1974); White v. Murtha, 377 F.2d 428, 431-32 (5th Cir.1967); Schupak v. Califano, 454 F.Supp. 105, 114 (E.D.N.Y.1978). See generally IB Moore’s Federal Practice paragraphs 0.404[1], 0.404[4.-l],

The action is now before the Court on the merits and, as the plaintiff, the City of Pleasant Grove has the burden of proof. City of Rome v. United States, 446 U.S. 156, 162, 183-87, 100 S.Ct. 1548, 1554, 1564-67, 64 L.Ed.2d 119 (1980); City of Richmond v. United States, 422 U.S. 358, 362, 95 S.Ct. 2296, 2299, 45 L.Ed.2d 245 (1975); Georgia v. United States, 411 U.S. 526, 538, 93 S.Ct. 1702, 1709, 36 L.Ed.2d 472 (1973); City of Port Arthur v. United States, 517 F.Supp. 987, 1010-11 (D.D.C.1981), aff'd, 459 U.S. 159, 103 S.Ct. 530, 74 L.Ed.2d 334 (1982); Mississippi v. United States, 490 F.Supp. 569, 581 (D.D.C.1979), aff'd, 444 U.S. 1050, 100 S.Ct. 994, 62 L.Ed.2d 739 (1980); City of Petersburg v. United States, 354 F.Supp. 1021, 1027 (D.D.C.1972), aff'd, 410 U.S. 962, 93 S.Ct. 1441, 35 L.Ed.2d 398 (1973).

It is in this procedural framework that the Court now considers the factual issues.

I

During its history, Pleasant Grove approved the following four annexation requests: a parcel of land to the southeast of the city (1945); land in the northern, southern, and western areas (1967); the Glasgow Addition (1971); and the Western Addition (1979).² None of these areas had any black residents. During the same period, the city rejected annexation petitions from the Woodward School (August, 1971),³ the Pleasant Grove Highlands (April 18, 1979); and the Dolomite area (October, 1979). Each of these areas has been identified as a “black” area.⁴

The annexations directly at issue in this proceeding are those of the Western Addition (Western), the Glasgow Addition (Glasgow), and the Pleasant Grove Highlands (Highlands). The basic rationale offered by Pleasant Grove in discharge of its burden of proof is that its decisions to annex the “white” Western⁵ and Glasgow areas, but not the “black” Highlands, were based not on race but on the city’s economic self-interest.

In support of that rationale, Pleasant Grove adduced evidence⁶ tending to show that, when the residents of the Highlands requested annexation (some two months after the annexation of Western), the mayor of Pleasant Grove appointed a committee to investigate. That committee, it is said, reported to the City Council that annexation would not be financially advantageous, and a second committee later likewise concluded that annexation would be economically costly to the city.⁷ The principal substantive contentions Pleasant Grove is making in support of these conclusions are (1) that by annexing the Highlands, it would give up approximately $59,000 in development fees,⁸ and (2) that the Highlands, unlike the “white” areas which had recently been annexed, requires more than its per capita share of City revenues, particularly in the form of police, fire, and sanitation services. We find, based on the evidence, that these contentions are without merit, and that they are a mere pretext for race-biased annexation decisions.

II

First. Neither in connection with the Highlands’ petition nor at any other time did Pleasant Grove conduct an economic study to determine the advantages and disadvantages of a particular annexation; all the economic conclusions reached in this regard were developed after the fact. The evidence clearly shows that the City did not assess the economic or other impacts of annexation prior to its decision not to annex the Highlands,⁹ and that it likewise performed no such studies in connection with its decisions to annex the Western and the Glasgow areas.

Second. Pleasant Grove’s reliance upon the determination of its so-called “Annexation Committee”—that annexation of the Highlands would be too costly—is unpersuasive for other reasons as well. Although the City asserts that the committee was established in March, 1981 to consider economic impacts, committee members have testified that they were not notified of their appointments until one year later.¹⁰ It is likewise established that, if the committee met at all, it did so only once and then only on an informal basis, and that it never gathered its own information, but what data it had were provided to it by the Mayor from various city department heads who had already prejudged the issue.¹¹ The committee never questioned these individuals regarding economic issues; it generated no documents; and it made no official report to the City Council. Based on these uncontroverted facts, it is difficult to escape the conclusion that reliance by the City on the committee’s recommendation for its decision not to annex Pleasant Grove Highlands is a sham.¹²

Third. Substantively, the economic justification presented to the Court for the City’s failure to annex the Highlands is no more persuasive.¹³ The factors that have been cited in that regard are fire protection, streets and sanitation, police protection, and revenues from development fees.

A. The Pleasant Grove fire chief has stated that the annexation of the Highlands would have generated the need for three additional firefighters/paramedics and one additional rescue truck, at considerable cost to the city. That projection was entirely without factual basis, for the city was already providing free fire, police, and paramedic services to the Highlands, area, and thus no additional monies would have been needed as a consequence of annexation. The fire chief’s projection is dubious for another reason as well: the anticipated cost for serving the 79 homes in the Highlands was more than the estimated cost of serving the 700 projected homes in the Western addition although the former is more easily accessible than the latter.

B. Similar problems exist with respect to the City’s findings concerning the respective costs of providing street and sanitation services to the Highlands as opposed to the Western Addition. Those responsible for calculating the costs of these services applied entirely different cost methods for the needs of the Highlands than they did for those of the Western Addition. If the same method of calculating costs are applied to both areas, the cost to the city would be, depending upon the formula used, either $20,000 for the Western Addition and zero for the Highlands,¹⁴ or $81,-900 for the Western Addition and $6,917.24 for the Highlands.¹⁵ In short, under either method, the cost of providing street and sanitation services to Western far exceeds the cost of providing such services to the Highlands.

C. On the issue of police protection, the City’s high cost estimates for the Highlands were based primarily upon the view expressed by the police chief, that the black residents of the Highlands were more “crime prone.” ¹⁶ Actually, to the extent that the statistics support that assessment at all,¹⁷ they are explained by the fact that the Highlands was a “new” neighborhood still lacking cohesion.¹⁸ In any event—as is true with respect to the provision of fire and paramedic service—the Pleasant Grove police department already responds to calls in the Highlands, and the annexation therefore should not generate any additional costs.¹⁹

D. As concerns finally the question of revenues from new development, Pleasant Grove relies primarily upon the fact that if the city brought in the 79 already-existing homes in the Highlands, as distinguished from having an equal number of new houses built within the city, it would lose $45,-820 in development fees. That argument fails entirely to consider, however, that annexation of the Highlands would generate immediate ad valoram tax revenues for the city, and that the Highlands area contains sufficient undeveloped land to allow the construction of 80 new homes.

Pleasant Grove also estimated that the annexation of the Western Addition would generate anywhere from $768,250 to $1,424,500 in development fees over a four year period,²⁰ in the form of building permits, subcontractors’ licenses, increased property taxes, and the like. These figures, however, are shown by the record to be highly inflated. For example, the City’s estimated annual tax revenue for the new Western homes exceed those of the City’s most expensive neighborhoods. Moreover, on economic grounds other than development fees, the annexation of the Western Addition appears to be more costly to the City than the' annexation of the Highlands.²¹

We find that the economic justification advanced by Pleasant Grove for its annexation practices is flawed both procedurally and substantively, and that it is no more than a transparent attempt to put a valid gloss on decisions which plainly had a racial purpose.

Ill

In addition to the evidence of the disparate approach Pleasant Grove took with respect to almost every phase of its economic analysis of the proposed annexations, there is ample evidence before the Court that the City adopted racially-discriminatory policies with respect to matters other than annexation. As a matter of law, the Court may, and it does, infer on the basis of this evidence as well that racial bias was the purpose of Pleasant Grove’s annexation policy.²²

From the 1940s to the present, Pleasant Grove’s housing and zoning policies have been designed to exclude blacks from the City. This was done either directly²³ or through its efforts to exclude apartment construction (in the belief that apartment housing was likely to be occupied by blacks).²⁴ Moreover, Pleasant Grove has managed to maintain an all-white residential community by operating a dual white-black housing market through a variety of devices, such as advertising and marketing directed exclusively to white buyers, and racial steering.²⁵

Pleasant Grove has likewise made clear its policy of hostility to the presence of blacks in subjects other than housing. The City has never hired a black person, preferring to draw its employees from as far away as fifty miles rather than to hire blacks living in surrounding Jefferson County, which is one-third black. When a federal court in 1969 required the County to abandon its segregated school system,²⁶ Pleasant Grove voted to secede from the county school system on the evening of the very day the court’s order was issued. The City established its own separate “white” school system, financing it with extraordinary taxes,²⁷ and funds diverted from the municipal utility system.²⁸ These actions, and others,²⁹ demonstrate that the City of Pleasant Grove has attempted to exclude blacks from becoming residents of the City and all facets of City life, including voting in municipal elections, and that it has, in fact, succeeded in doing so. As the Rogers and Busbee cases, cited supra, hold, such actions are valid evidence of discriminatory purpose in a voting rights action.

The mass of evidence of a specific racially-biased annexation policy, supported by what must be, for this day and age, an astonishing hostility to the presence and the rights of black Americans, far overshadows and outweighs the City’s feeble effort to portray its annexation policy as economically motivated. We find that the economic rationale advanced by Pleasant Grove is pretextual, and that the city has wholly failed to carry its burden of establishing that its annexation policy does not have the purpose of denying or abriding the right to vote on account of race or color.³⁰

For these reasons, it is the judgment of this Court that the request of plaintiff for preclearance of the annexations of the Western and the Glasgow Additions pursuant to section 5 of the Voting Rights Act must and will be denied.

1 . The complaint initially sought declaratory relief only with respect to the annexation of the Western Addition, and on May 15, 1981, plaintiff filed a motion for summary judgment as to this single annexation. On October 7, 1981, the Court ordered plaintiff to amend its complaint to include a second annexation, accomplished in 1971, which had not been precleared with the Department of Justice—the so-called "Glasgow Addition.” Plaintiff amended its complaint and then moved for partial summary judgment as to the Glasgow Addition, requesting a finding that its annexation, too, did not have the purpose or effect of denying or abridging the right to vote on account of race or color. That annexation is therefore likewise before us.

2 . In August of 1969, a committee from Sylvan Springs and the West Grove area (both inhabited by whites) requested Pleasant Grove to consider consolidation with the former and annexation of the latter. This petition for annexation was actively pursued and facilitated by Pleasant Grove, but the annexation was blocked by the United States Steel Corporation, which, as an intervening property owner, had the legal right to do so. This Opinion constitutes the findings of fact and conclusions of law required by Rule 52, Fed.R.Civ.P.

3 . The city refused to annex the site on which the "black” Woodward School was located in order to avoid federal court school desegregation orders.

4 . Pleasant Grove also refused to annex the Kohler (1969) and Westminster (1977-78) parcels which were inhabited by whites, because such annexations might have a "mushroom effect” leading to subsequent annexations of adjacent black areas. Patrick Deposition of April 2, 1981 at 55-56, 102-104.

5 . While the Western Addition is undeveloped, its location and the City’s plans indicate that it is likely to be developed for use by white persons only.

6 . The parties submitted to the Court their affidavits, depositions, answers to interrogatories, admissions, and exhibits, and they stipulated that the Court may render its decision on the merits based on that record without the need for the taking of additional evidence at a trial.

7 . The chairman of the second committee testified that he decided to take no action on the request because no one had approached the City since his election to the Council in October, 1980; the matter was already in litigation; and he did not want to make any decision which would expose him to a race discrimination suit. Mosley Deposition of January 11, 1984, Part I at 15, Part II at 23-24, Plaintiff’s Brief at 9.

8 . Plaintiff’s Brief at 9. Sarah A. Mays, the City Clerk of the City of Pleasant Grove and the Secretary-Treasurer of the Utilities Board, stated that the City would give up $45,820 in development fees if it annexed the Highlands (which consists of 79 houses) instead of building those houses within the city. Mays Deposition of January 13, 1984 at 19 and Exhibit 14 thereto.

9 . Or intend its decisions not to annex the Dolomite, Kohler, and Westminster areas. See note 4, supra.

10 . The Annexation Committee was made up of James (or "Pete”) Mosley, Clyde Morgan, and Joe Cooper. Mosley averred that he was notified of the formation of the Committee shortly before receiving the Mayor’s letter with enclosures concerning the estimated costs of providing services to the Highlands, dated May 24, 1982. Mosley Deposition of January 11, 1984, at 10-11.

Morgan likewise stated that he was appointed to the committee at approximately the same time as the letter was sent. Morgan Deposition of January 11, 1984 at 7. And Cooper, the third alleged member of the Committee, has no recollection of ever being appointed or serving on the second committee. Cooper Deposition of January 11, 1984 at 7-8.

11 . In his letter to the Committee Chairman, the Mayor gave his opinion that "it is the general consensus of all concerned that the costs of annexing [the Highlands] would be prohibitive, based upon the projected revenues that would be derived from same.” Letter to Mr. Pete Mosley, Chairman, from Mayor Donald R. Morrison dated May 24, 1982. Govt’s Exhibit 1 to January 11, 1984 Mosley Deposition.

12 . Indeed, only one member of the Committee, Pete Mosley, reached a conclusion concerning the desirability of annexing the Highlands, and his decision was based largely, if not entirely, on the fact that the matter was in litigation. See January 11, 1984 Deposition of Mosley, Part I at 15, 18-20, Part II at 23-24.

13 . In connection with the City’s reliance on the economic disadvantages allegedly flowing from an annexation of the Highlands, it is interesting to note that the Glasgow annexation, which the City did effect, was an economic drawback to it because of its inaccessibility to city fire and police services. That area, in fact, was annexed solely because of the personal relationship between city officials and the Glasgows who were described as "fine people” whom the city residents "would be proud to have in Pleasant Grove." Deposition of Councilmember Clyde E. Morgan of December 17, 1981, at 15, 17-18. Needless to say (see Part III infra), there were no expressions of opinion from city officials that the black inhabitants of the Highlands were "fine people” whom the City "would be proud to have” as members of the community.

14 . Plaintiff stated that, as a result of anticipated development in the Western Addition, it would have to hire two additional sanitation workers at a cost of $10,000 each per year. No such additional personnel would be needed to service the 79 homes in the Highlands, however, because the residents offered to continue their private garbage collection after annexation. Graham Deposition of April 7, 1981 at 13 and 34. In any event, the City Clerk testified that the Department staff is currently underutilized. Mays Deposition of January 13, 1984 at 44-45.

15 . These figures are based on the 1980 average cost of street and sanitation services per household of $87.56. George Parkin, Superintendent Streets and Sanitation Department, used this figure to calculate the cost of providing services to the Highlands. Government’s Exhibit 1 to Mosley Deposition of January 11, 1984.

16 . Police Chief Robert L. Love deposition of January 12, 1984 at 18.

17 . Chief Love based his opinion on a comparison of the number of burglaries committed in the Highlands between July 20, 1978 and January 3, 1979 with the number of burglaries committed in the City of Pleasant Grove during 1980. The available data for theft during this same high-crime period, however, indicates that the Highlands had a lower incident of theft than did Pleasant Grove. Only one theft was reported in the Highlands (79 homes, .013 thefts per household), whereas 79 thefts were reported in Pleasant Grove (2,400 homes, .033 thefts per household). Plaintiff's Exhibit 1 to Waldon Deposition of January 12, 1984 and attachments.

18 . January 12, 1984 Deposition of Detective Sergeant Waldon at 14-15. Burglaries in the Highlands declined from 25 in 1978 to 16 in 1979, to 13 in 1980, and to 2 in the first nine months of 1981. Plaintiff’s Exhibit 1 to Waldon Deposition and attachments.

19 . No new police costs were projected for the Western Addition even though Chief Love testified that development of this area would also require new resources. Love deposition of January 13, 1984 at 9-10.

20 . Plaintiff's counsel stated in a letter of August 20, 1980 to the government that the City’s total estimated revenue from development fees over the next four years would be $768,250. Government Exhibit 1 to Mosley Deposition of January 11, 1984. In a letter dated July 14, 1980 to plaintiff's counsel, the Mayor of Pleasant Grove estimated that the development fees - and receipts expected from the annexed area for the next four year period would be $1,014,600. Government Exhibit 3 to Mosley Deposition. A month earlier, however, the Mayor had estimated that the City would receive $1,424,500 in development fees from the annexation of Western. Government Exhibit 2 to Mosley Deposition.

21 . Thus, the overall projected cost of annexing Western fails to take into account such necessary construction as a new fire station, a major traffic artery, and a new neighborhood park.

Beyond that, even if it were to be assumed that Pleasant Grove would not fare as well with respect to the one item of development income by annexing the Highlands as by failing to do so, the City clearly did not know this when it rejected the Highlands petition.

22 . See Rogers v. Lodge, 458 U.S. 613, 624-26, 102 S.Ct. 3272, 3279-80, 73 L.Ed.2d 1012 (1982); Busbee v. Smith, 549 F.Supp. 494, 516-17 (D.D.C.1982), aff’d, 459 U.S. 1166, 103 S.Ct. 809, 74 L.Ed.2d 1010 (1983).

23 . In the early 1940s, the Pleasant Grove City Council acted to prevent the construction of a "colored housing project” within the City, and it directed the City attorney to draft a zoning ordinance designed to “restrict colored property." See Minutes of Pleasant Grove Town Council Meeting of November 3, 1941. In fact, the Town Clerk was instructed to write Mr. Pill of the Woodward Iron Co., that the City sincerely desired that he would not sell any land within the corporate limits for a "colored housing project,” and that it highly encouraged the project to be “built outside so as to avoid conflict with our zoning ordinance. " Exhibit 12 to Response of the United States to Plaintiff's Motion for Summary Judgment filed on March 26, 1982 (hereinafter Government's Response Brief) (emphasis in the original). In the Town Council meeting of November 1, 1943, the Town Clerk was instructed to contact the City attorney concerning a zoning ordinance to restrict "colored” property and business districts and white residential property within the corporate limits. Exhibit 13 to Government's Response Brief.

24 . See Milton C. Russell Deposition of April 3, 1981 at 22-24. See also Bobby R. Patrick Deposition of December 17, 1981 at 40. The City’s restrictive zoning ordinance prohibiting the construction of apartments was struck down by a federal court on the ground that it had a racially-exclusionary effect. Wheeler v. City of Pleasant Grove, C.A. No. 78-F-1150-S (N.D.Ga.1979).

25 . See Joe Nathan Dickson Deposition of April 17, 1981 at 8-14, 17-18, 27-29; Albert Mason Deposition of April 7, 1981 at 21-22, 26-27; Billy F. Graham Deposition of April 7, 1981 at 7-10.

26 . Stout v. Jefferson County Board of Education, C.A. No. 65-396 (N.D.Ala.1969).

27 . In addition to enacting higher sales and other taxes, the City Council raised the ad valorem property tax rate to the highest level in Jefferson County.

28 . That separate school system was ultimately abolished in 1972, by another federal court order. Stout v. Jefferson County Board of Education, No. 72-1102, aff’d, 466 F.2d 1213 (5th Cir.1972).

29 . Among other things, the Pleasant Grove City Council authorized the formation of a chapter of the White Citizens Councils, it thanked Governor George Wallace for his fight against desegregation, and it condemned the Birmingham Bar Association for its expression of moral support to Judge Samuel Pointer of the U.S. District Court for the Northern District of Alabama for his efforts in Stout.

30 . Even if the burden of proof were on the United States—which it is not—we would have had no difficulty in finding that the annexation policy of Pleasant Grove is, by design, racially-discriminatory in violation of the Voting Rights Act.