ARLINGTON HEIGHTS v. METROPOLITAN HOUSING CORP.

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Argument of Jack M. Siegel

Chief Justice Warren E. Burger: We will hear arguments first this morning in 75-616, alleged of Arlington Heights v. Metropolitan Housing Development Corporation.

Mr. Siegel you may proceed whenever you are ready.

Mr. Siegel: Mr. Chief Justice may it please the court.

This causes here on certiorari to the Court of Appeals of the Seventh Circuit.

The Court of Appeals reversed the District Court.

This is a zoning case, which the Circuit Court held that the refusal to rezone certain property classified for single-family use in the village of Arlington Heights, violated the Equal Protection Clause of the Fourteenth Amendment.

In so doing, the court of appeals recognized that the zoning ordinance of the village of Arlington Heights as applied to the subject property was not administered in a discriminatory matter, found that the village was attempting to protect neighboring property values and to preserve the integrity of its zoning ordinance.

Nevertheless, the court based upon its findings at the Chicago Metropolitan Area at a segregated housing market, applied the compelling interest test and held in substance that the village had an affirmative duty to rezone the property.

In light of the fact that Arlington Heights in 1970 had a population of approximately 64,000, only 27 of whom were Negros.

The plaintiff in the case below, the respondent here is the Metropolitan Housing and Development Corporation.

It is 'Not for Profit' Corporation established for the purpose of building low and moderate-income housing in the Chicago Metropolitan Area.

It has a 99-year lease and purchase agreement with the clerics of St. Viators, who are the owners of the 15-acre track, which is the subject matter of this litigation.

The 15-acre track is part of an 80-acre track owned by St. Viators, which is presently improved for the boys’ high school in novitiate, and an old single-family dwelling.

The property has been zoned as part of the 80-acre track since the beginning of zoning in Arlington Heights for single family development.

Under the 1959 comprehensive plan of the village of Arlington Heights, the subject property was shown for single-family purposes.

The portion of the property, which is subject to the 99-year lease and the option to purchase consists of approximately 1,100 feet in the North and South direction and approximately 600 feet in an East and West direction.

It is surrounded on all sides by the (R-3) zoning classification, and with the exception of the property also owned by St. Viators, surrounded on all sides by a single family well-established residential district.

Under the provisions of the Arlington Heights (R-3) zoning classification, approximately 50 single family homes could be placed upon the subject property.

The respondent sought rezoning to the (R-5), which is the multiple family classification for the purpose of establishing 190 dwelling units.

Their contract purchase was conditioned upon rezoning and was also conditioned upon the securing of a 236 mortgage commitment under the prior Federal Housing Act 236 provided for federal assistance with respect to the construction of multiple family dwelling units.

I would draw the court's attention to page 115 of the exhibit volume of the appendix, in which we have a land use and zoning map indicating the physical characteristics of the surrounding area.

I would also point out that exhibits 11 and 14 found at pages 121 and 123 contained photographs of the surrounding area.

Under the provisions of the Arlington Heights zoning ordinances, high schools such as the high school alumni site, churches and monasteries or in this instance a novitiate are permitted uses under the (R-3) classification.

Unknown Speaker: Where is the Arlington Heights vis-à-vis in the city of Chicago?

Mr. Siegel: Arlington Heights lies in the North-West suburban area, approximately 23 miles from the center of the city of Chicago.

It has a population in 1970 of 64,000.

At the present time, we recently had a federal census, Your Honor, our population is now approximately 71,000, as I indicated in 1970, there were 27 blacks.

The most recent census shows that there are now 200 blacks in Arlington Heights and 648 other non-white persons.

Unknown Speaker: Is it west of Evanston?

Mr. Siegel: Yes, sir.

It is almost directly due west of Evanston.

Now at the time of trial in 1973, and this matter commenced with the denial of the application for rezoning in 1971.

Arlington Heights had over 14,000 owner occupied single-family homes.

It also had more than 6,000 multiple family units in Arlington Heights, so this is not a case involved in an effort to screen out rebel units.

The zoning in Arlington Heights provided for an additional 9,000 multiple family units, that was on property, which was already zoned to permit multiple family dwelling units.

They can see rates for apartments in 1970, under the 1970 census, which was before the board when the decision was made, was over 11% vacancy in the (R-5) or the multiple family districts.

The time of trial, at least seven vacant (R-5) parcels were for sale.

Now the evident shows the village policy was to use (R-5) classification as a buffer between the single family and commercial or industrial uses.

The Village denied the zoning, the Plan Commission found in its report that the subject property would not constitute such a buffer because there was nothing to buffer it.

The evidence in the record showed clearly that the proposed development would have an adverse effect on additional property values in the neighborhood of 10%.

The property on Drury Lane, the single-family homes which back-up as indicated on our land use exhibit range in value from $50,000-70,000.

The property, South of Euclid Avenue, which is the Southern boundary of all single-family range in the area from $40,000-50,000.

Property, West of Dryden is also in the $50,000-60,000, class and the property North of Oakton which is the Northern boundary cross from the high school are relatively new homes built within five years of the trials, some homes still under construction, they also range in the $60,000-70,000 class.

The evidence shows also that the subject property could be economically developed for single-family homes at a price range comfortable or higher to the existing single-family homes in the area.

As a matter of fact, Mr. Kane(ph), who was the Real Estate Manager of the plaintiff, testified that except for the fact that the clerics of St. Viators wish to get $300,000, which was the purchase price for the property.

The property could have been develop for a low and moderate single family homes which were then eligible under the so called 235 Program, except that they could not afford to pay more than $200,000 for the price -- price for single family purposes, so that there is no question that this property was properly zoned in terms of its suitability.

The surrounding land uses all the criteria, which I indicate in my brief, that the criteria normally apply to the zoning matters.

The Trial Court found that the village was motivated by a legitimate desire to protect property values and the integrity of the zoning plan.

It found that the low-income workers do not have a constitutional right to low income housing either where they work or else where.

There was no evidence proving discrimination against racial minorities from the low-income persons, generally, and the Trail Court found that there were no specific violations of the fair housing act or the civil rights act, and that there was no violation of the Fourteenth Amendment.

The Court of Appeals as I have indicated found that the findings of the Trial Court should not be disturb in an essence said, that the villagers -- reasons for rezoning were the protection of property values, were for the preservation of the integrity of the zoning ordinance.

The court specifically found that the evidence did not support the finding that the villagers administering its buffer policy and discriminatory matter, found that the trial courts determination was not clearly erroneous.

The Court Of Appeals also recognized that merely because racial minority has constituted a higher percentage of low and moderate income category, did not mean that the refusal to rezone at the type of racially discriminatory effect that required the implication of a compelling interest test.

But to my mind, illogically, it then preceded to rely upon what it judicially determined was the segregated housing market in the Chicago Metropolitan Area and compelled, and applied that the compelling interest test.

Now the villagers’ position in this matter is very simple.

We take the position about the fact that the zoning ordinance may have a greater impact upon the poor or a minority group, does not thereby, invalidate it or cause it to be a violation of the Equal Protection Clause of the Fourteenth Amendment.

The evidence indicated that in the standard metropolitan area, that is a six county area around Chicago, approximately 40% of the blacks who resided in that area would be eligible for the housing which was proposed here, low and moderate income housing—the so called Lincoln Green project.

There is no evidence that anyone has ever been denied housing in Arlington Heights because of their race, as a matter of fact, the answers to interrogatories indicated Arlington Heights was the first community in North-West suburban area to adapt a fair housing ordinance.

Mr. D.V Zay(ph), a demographer, who testified for MHDC, testified that based upon the economics of the situation, approximately 5% of the housing units in Arlington Heights were available to blacks in the Chicago Metropolitan Area, and that -- if housing was determined solely for economic reasons, there would be a black population in excess of 3,200 blacks in Arlington Heights.

This indicates to our mind at least that it was the economic situation and not the zoning, nothing that the village of Arlington Heights has done by way of zoning which has in anyway impaired the rights of blacks to live in Arlington Heights.

We believe therefore that what the Court Of Appeals has done is applied one set of zoning criteria for so called white housing, and another set of criteria for housing which may contain black or poor people.

We believe that under the decisions of this court, in Lindsey v. Normet, or Rodriguez and the other cases, which I have cited in my brief, there is no fundamental constitutional right to housing, and that the court erred in applying the compelling interest test.

The proper test, we believe following Belle Terre and Euclid is the test of rational relationship to a permissible state objective, and we believe that the zoning ordinance bears such a rational relationship.

We also believe that under the criteria which has been established for the decision of zoning cases, the surrounding land use, zoning suitability of the property for the purposes zoned, the presumption of validity that the MHDC failed to overcome the presumption of validity.

We believe that the court should not substitute its judgment for that of the legislative body or that the federal court should set as a super zoning board.

The ordinance is patently reasonable, I think that Your Honors, will determine by simply looking at the land use map and at the photographs indicating the actual uses in place.

The ordinance is not on its phase or in fact aimed at a racial or economic minority.

It is a valid exercise of legislative discretion and it should not...

Unknown Speaker: What ordinance are you talking about?

Mr. Siegel: I am talking about the Arlington

Unknown Speaker: This was a failure to rezone.

Mr. Siegel: A failure to rezone.

Unknown Speaker: So what ordinance are you talking about?

Mr. Siegel: I am talking about the village of Arlington Heights, zoning ordinance and specifically the classification of the subject property for (R-3) single-family purposes.

This zoning has been in existence since as I indicated, the first zoning in Arlington Heights, this is not a failure to rezone.

This is not the Dailey cases, this is not Kennedy homes case, where there was a rezoning to keep out.

Unknown Speaker: Well, this is a failure to rezone, this case.

That is what they...

Mr. Siegel: It is a failure to rezone.

Unknown Speaker: Yes.

Mr. Siegel: Yes Sir, but it was a continuation of the existing…

Unknown Speaker: Of existing zoning.

Mr. Siegel: Yes, sir.

Unknown Speaker: Right.

Mr. Siegel: Well that is by -- that is what a refusal to rezone is almost by definition, is it not a continuation of existing zone.

Unknown Speaker: It is a continuation of the prior zoning.

Chief Justice Warren E. Burger: When you speak of the ordinance, you mean, the status as it exists.

Mr. Siegel: As it existed then, and as existed at the time of the trial, yes sir.

Now we also believe that respondents in this case lack expanding.

The Trial Court held that the two blacks, who actually testified did not have standing to represent a proper class, they were Mr. Guthrie(ph) and Mr.Ransom, who were employed at Honeywell, neither of whom had ever sought housing in Arlington Heights.

One of them it looked at want ads.

Unknown Speaker: Mr. Siegel, I want to be sure, was there an objection on standing grounds?

Mr. Siegel: Yes, sir.

I filed a motion, originally, to have the case dismissed for lack of standing.

My motion is found in the first volume of the Appendix on Page 20 and 21, paragraph four, I raised the question of standing.

Unknown Speaker: Let me be sure about -- is it Maldonado?

Mr. Siegel: Mrs. Maldonado was...

Unknown Speaker: Is she still living in the village?

Mr. Siegel: She lived in the village at the time of the trial, to the best of my knowledge, she still lives in the village.

Unknown Speaker: Have any of the other individual -- name individual plaintiffs that demonstrated any interest in housing in Arlington Heights?

Mr. Siegel: No, sir.

Not to my...

Unknown Speaker: On the record?

Mr. Siegel: Not on the record.

One of them lives in Evanston, which is another suburban community who testified, he lived there with his mother and his son in a five-room house.

His mother also had a full time job and there is no indication even qualified with respect to income, and he commuted 45 minutes to Arlington Heights.

The other gentlemen lived in the city of Chicago and moved further away in order to buy a two flat in Chicago, he was renting out one apartment for $160 a month, I believe, and he resided there with his wife and child.

His wife was also employed.

There was no evidence that either of them had ever indicated any interest in housing in Arlington Heights, except I believe Mr. Guthrie said that he had read the want ads.

Unknown Speaker: Mr. Siegel, you said that the District Court held that there was no standing.

I read it -- in otherwise.

Mr. Siegel: No sir, they did not hold there was no standing, they held it was not a class action.

Unknown Speaker: Yes.

Mr. Siegel: Yes, sir.

Unknown Speaker: But you raised the standing question.

Mr. Siegel: I raised the standing question initially in a motion to distract and dismissed, predecessor judge, not Judge McMeelen, Judge Lynch, who had the case originally denied my motion.

Unknown Speaker: And how about the Court Of Appeals?

Mr. Siegel: The Court Of Appeals did not talk about it at all.

Unknown Speaker: Did you talk about?

Mr. Siegel: I talked about it in my brief; I raised it in my brief.

I argued it orally and I also argued the fact that MHDC had a contract purchase conditioned on a 236 commitment, 236 program was dead at the time of the trial.

But under Illinois law, the so called Clark v. City of Evanston case, a mere contract purchaser does not have standing because he is damaged.

He does not get the zoning and he walks away.

So I argued that and that was clearly before the Court of Appeals, they did not touch.

Unknown Speaker: And the case of a Warth v. Seldin have been decided here, at the time of the Court Of Appeals decision.

Mr. Siegel: Yes sir, I believe it was decided at the Court Of Appeals decision, it was not decided that the time of Judge Lynch's decision and I rely of course on Warth v. Seldin.

It is our position that the failure to grant the rezoning request did not violate the Civil Rights Act to the Fair Housing Law or the Fourteenth Amendment.

Any other decision would have been spot zoning or just destroyed the integrity of our zoning plan.

The property is clearly suitable for single-family purposes.

The Trial Court also found that there was no discrimination involved in this case and the Courts Of Appeals refused to set aside that finding and fact.

We believe that the Fourteenth Amendment and that the Civil Rights Act and Fair Housing Act does not protect purported discrimination based upon economics, that this is essentially a garden variety zoning case in which the argument is made, that because of single-family zoning, poor people cannot reside on that property and that there is a percentage of poor people who are black, and therefore, according to the respondents, this is a violation of the Fourteenth Amendment.

Now, this argument has been raised in this court in other connections, San Antonio School District case, Rodriguez case, Lindsey versus Normet, James v. Valtierra, Palmer v. Thompson, and then, the Court of Appeals of various districts including the Aseveto and the Mahaley housing authority case.

We believe that Court of Appeals held at low income persons have special privileges to have low income housing, if there is a possibility or the higher percentage of minorities will be in their number.

We do not believe there is any basis in the Fourteenth Amendment for this position.

The fact that the zoning ordinance may have a greater impact upon the poor or minority group clearly does not invalidate it.

Most recent case, which I have cited in my supplemental brief is Washington v. Davis.

There is no affirmative duty, we believed, under the Fourteenth Amendment to change a valid zoning ordinance, absent a showing of purposeful discrimination simply to accommodate low income people.

We believe that Milliken v. Bradley, and Washington v. Davis clearly establishes this fact.

The fact that as I said, enforcement in ordinance may have a greater impact on the poor, does not render invalid under the Equal Protection Clause, under the teachings of this court; court in James v. Valtierra.

As a matter fact in Warth v. Seldin, which we rely on, on the standing case, I believe this court specifically said that the failure of low income people to reside in that suburban community was based on their economic situation and could be based upon their economic situation and not upon any zoning pattern.

Unknown Speaker: But the position of Metropolitan Housing Development Corporation here, as an actual applicant for rezoning with a contingent conduct makes it a little bit different than any of the parties involved in Warth v. Seldin, does it not?

Mr. Siegel: Yes Honor, I believe it does except that they are a purchaser subject to zoning, subject to 236 Commitment and at least under the Illinois law, such a party does not have a right to challenge because they have no property interest.

Quite out of course, that the owners of the property have never been a party to this lawsuit, The Clerics of St. Viator, who would loose presumably $300,000 their purchase price if the zoning was not granted or the commitment was not received.

Unknown Speaker: Well, it is very typical in this kind of litigation is it not to have the potential purchaser to conduct the zoning litigation rather than this?

Mr. Siegel: Yes sir, but at least in Illinois, it is typical to have a property owner enjoined and as I indicated the Illinois Supreme Court in the Clark case had the situation where only the contract purchaser was carrying out the litigation and not the owner.

They specifically held that since the contract purchaser really had nothing to loose by a way of the failure to receive zoning, that they have no standing.

Also I think the trial court pointed out that merely because MHDC was organized for the purpose of low and moderate income housing, it did not have any special racial characteristics under the Fourteenth Amendment and should be treated the same as any other corporation.

Chief Justice Warren E. Burger: Mr. Siegel, in some places zoning application like this requires a pledge of a commitment to execute the project, that is not required I take it under Illinois law?

Mr. Siegel: It is not require as a matter of practice, Your Honor.

Normally when property is rezoned, it is rezoned -- permit a specific use.

In this instance, it would have been a so called plan development in the property could only be developed in accordance with the specific plan, but there is no statutory or case requirement in Illinois under the commitment for the developer to go ahead and the trial court indicated after reaching the decision on the merits.

It would be reluctant to grant any relief because the fact that 236 Program was dead and this was simply a rezoned property and opened it up to any of the uses permitted under the R-5 classification.

And we believe that the ordinance is presumed valid.

The party assailing it must overcome it by clear and convincing evidence and if the decision of legislative body is fairly debatable to court, will not substitute as judgment, and there of course Euclid v. Ambler and the Valtierra case Hornbrook Law on that proposition.

We believe as I have indicated that the respondents lack of standing to bring this action for the reason that these are non-residents, not residing in Arlington Heights, no showing that this was a class action, that the intervene or Mrs. Maldonado resided in Arlington Heights.

The other intervene are the North West Opportunity Center is a welfare organization funded in part by the Village of Arlington Heights and part by the federal government, who are there to take care of the low income people in Chicago Metropolitan Area.

Testimony of Mr. Newton, who is their director, was that at the time of trial, there were 188 low-income families in Arlington Heights that there were approximately 1500 in the Arlington Heights area.

Many of them were Spanish surnamed and Mexican, originally migratory workers who had settled there.

Mrs. Maldonado clearly does not zoned out of the village because Mrs. Maldonado lives in the village.

Therefore your Honors, it is our hope that this Court will not elevate or degrade the Fourteenth Amendment into the proposition that there is one set of zoning laws for all people except the poor or the minorities.

The Village of Arlington Heights then we emphasize, has not discriminated, this trial court so found that as the matter of fact, the trial court was correct.

There was no evidence of discrimination.

The village of Arlington Heights does not discriminate.

I would like to reserve my last five minutes for rebuttal.

Chief Justice Warren E. Burger: Very well, Mr. Siegel.

Mr. Caruso?

Argument of F. Willis Caruso

Mr. Caruso: Mr. Chief Justice and May it please the Court.

This is not a garden variety zoning case.

This is a case of racial discrimination.

Mr. Ransom and Mr. Guthrie do desire to live near where they work, and they do not want to drive 40 and 50 minutes a day to get there in Chicago’s bitter and cold weather.

Unknown Speaker: Some record demonstrate that statement?

Mr. Caruso: Yes, it does Your Honor.

Unknown Speaker: Where?

Mr. Caruso: The testimony and give you testimony of both Guthrie and Ransom show that they went out and looked, what counsel is referring to as he was saying that because they did not go and confront white people.

That they did not know that they could confront white people, that they looked but they could not find what they wanted and perhaps because of their fear of whites and their fear of this location did not pursue it, that is not looking, that cannot be the case.

Unknown Speaker: The distinction about discrimination, where is the Court of Appeals’ finding?

Mr. Caruso: I think the Court of Appeals finding, your Honor, squares with the standard set by Washington v. Davis.

I think although it may not fall completely in the Washington versus Davis format, the court, in looking at Valtierra and analyzing the situation said that the impact alone was not sufficient, but taking into account the totality of the situation and then they went through to the totality, the high segregation of Chicago Metropolitan Area.

Unknown Speaker: Well, that is not went Washington v. Davis says.

The Washington v. Davis says you must have a fact which certainly was found by the Court of Appeals here and you must have intent.

The District Court found no intent and the Court of Appeals upheld that finding.

There is no totality of the circumstances that are involved in it.

Mr. Caruso: I think that there clearly are two aspects of that.

First, both at the discovery level and again at the trial level, the court precluded us from going into the question of motivation, purpose and intent...

Unknown Speaker: Then, you are arguing that the Court of Appeals’ ruling that the District Court’s finding was not clearly erroneous should be set aside by this Court?

Mr. Caruso: No, the Court of Appeals did not directly go to all of the questions as clearly...

Unknown Speaker: Well, but it specifically said it would not set aside the District Court’s finding that there have been no discriminatory intent.

Mr. Caruso: Based on the buffer zone application, I would also agree, however, that that they did not set aside anything as clearly erroneous, but there are two aspects of it.

One is that we were not allowed to go into intent and motive because of Palmer v. Thomason and O’Brian at that time and the court said, that is Judge McMillan, said that his perception of this case was that motive and attempt was not important, that if the impact could be shown that that was sufficient.

Based on his perception of the case then he prevented us from asking Mrs. Harms and other people what happened at the meeting.

What was discussed?

What was the intent?

What was the purpose?

We could not go into that.

In addition to that, however, we believed that the record shows from the bitter statements, in the papers, the letters, the nature of this meetings that the intent and purpose of the racial discrimination and the statement by Mayor Walsh at the end, that this was a mandate from the people.

Unknown Speaker: Well, then you are asking us to set aside the Court of Appeals’ affirmance of the District Court’s findings that there was no purposeful intent?

Mr. Caruso: No, I think that the Washington v. Davis standard allows the determination of purpose and intent from the totality of the facts and that the totality of the facts here shows the racial purpose for denying this development.

The whole totality of the situation and the fact that there is no real reason for turning it down, means there is no integrity to the zoning ordinance.

The Court of Appeals said that the client and the budding property owners of those 17 homes was not the kind of substantial reason that would allow this kind of discriminatory affect.

So we believed that within the Washington v. Davis framework, the purpose and intent can be shown.

In addition to Ransom and Guthrie, who worked and had been moved to Arlington Heights and that is in the transcript, and it starts with page 220 of the transcript with Guthrie’s testimony.

MHDC has standing and desires to build and can build.

At the time of the trial 236 was not dead.

President Nixon at that time had a moratorium on 236 and later a Court of Appeals held that that would not stand.

Since that time, the Community Development Act has been passed and under Section 8; this development can be built with a very similar type of financing and provisions for low and moderate income people.

If there was a period of moratorium that is passed and it can now be constructed and MHDC is prepared to go ahead.

It has a definite important stake in this case and would like to get on with building these low and moderate-income housing.

Mrs. Maldonado also testified, although it is not directly a testimony as to her present location and there was testimony of record about the low standard of housing that Spanish-Americans are allowed to live in Arlington Heights.

There is a pledge by MHDC to continue to control this.

This is a not for profit corporation without standing board of directors which is concerned with equal opportunity in housing throughout Chicago Metropolitan Area.

They give letters to the municipality.

They committed to sticking with this development forever to see that it was well constructed, well managed by this not profit corporation.

So the commitment and the stake fully provides for the question of Warth v. Seldin and a stake in the development.

All of these people have standing.

The zoning...

Unknown Speaker: You need is one, is it not?

Mr. Caruso: That is right your Honor and the District Court found that clearly Maldonado and MHDC had sufficient standing and I do not believe they said Guthrie, that is Judge McMillan said Guthrie and Ransom did not have standing to represent the class, but he did not ruled that they personally did not have standing.

The zoning here is good zoning for MHDC which is a two-storey or one-and-a-half and two-storey townhouse development with individual entrances, 60% is open space.

It is like and compatible with as a witness testified, with the surrounding homes.

It is a very nice good-looking development with mature trees and before the application and the administrative process which was completely followed and the judge found that, MHDC worked with the village, provided hard stands for fire protection, changed the garbage, reroute the roads, gave the village everything that was necessary to make it a really high class fine development.

Unknown Speaker: How do you prevent us from taking all any of the considerations?

Mr. Caruso: No your Honor, I do not think it does.

Unknown Speaker: Well, you have been said that it was zoning law was passed, that was it.

Mr. Caruso: No, I think that Euclid said that the zoning law was entitled to control the zoning with in the municipality, but I think the Euclid and Necto v. Cambridge indicated that that was limited by the fact that if there were other requirements and other needs, safety, public health, the other interests of the community that those, which still have to be considered that Euclid does not override everything.

Zoning is not above all.

Unknown Speaker: Of course not, I mean, you say that the man is going to have -- where a nice development and all, Euclid says that means nothing.

Mr. Caruso: I think that...

Unknown Speaker: You say that they going to ride herd and see it as one drop, but Euclid said that is not what is to be considered.

Mr. Caruso: I do not think that is what overcomes Euclid.

I think what overcomes Euclid is the fact that this is a highly discriminatory market, that they have no low and moderate income housing.

Unknown Speaker: Is it discriminatory against poor people?

Mr. Caruso: No your Honor, it is not.

Our case is not base on discrimination against poor people.

It is based on discrimination against blacks and other minorities, and the overriding need for this housing in this area.

Unknown Speaker: Can a black person buy one of those vacant homes out there at $60,000?

Mr. Caruso: Can who buy it, Your Honor?

Unknown Speaker: A black person with a Spanish name, buy one of the houses if he has got $60,000?

Mr. Caruso: I believe that it would have a tremendous difficulty in Arlington Heights or any other municipality in the suburbs of Chicago.

It is a highly racial discriminatory market.

Unknown Speaker: Well, how many are living out there now?

Mr. Caruso: Well, he says that there 200 in the recent census.

I have not checked that census, I think that is high Your Honor.

Unknown Speaker: Well, what would you say?

Mr. Caruso: I would say there is some increase in the number of blacks in the area.

There has been an increase -- excuse me Your Honor?

Unknown Speaker: How many?

Mr. Caruso: There could be as much as 100 -- increase in blacks in the area.

Unknown Speaker: So they are not excluded, are they?

Mr. Caruso: Well, I think to say that the 127 people in the town of 72,000 is an indication that there is high exclusion as there are in 157 other municipalities.

Unknown Speaker: Well, what number would change that?

Mr. Caruso: Excuse me you Honor?

Unknown Speaker: What number would change that, 50%?

Mr. Caruso: No, Davis’s testimony said if it was an open market, if it was a racially free market, they are based on the value of the homes and the market and the style of homes and the housing stock, there would be about 3500 blacks living in Arlington Heights.

Unknown Speaker: They have 3500 Negros in Chicago; they can buy a $60,000 house?

Mr. Caruso: I think there are, yes, Your Honor.

Unknown Speaker: You think?

Mr. Caruso: Oh, yes.

Unknown Speaker: Do you have got any figures?

Mr. Caruso: No, Your Honor, I do not, but this is not a town of $60,000 homes, Your Honor.

This is a town with a broad housing stock.

A third of the units approximately are apartments.

This is not a single-family community with just single-family homes and very expensive homes as a broad housing stock.

It has right near this development, across this high speed street to the south.

There are houses in the $30,000-40,000 range.

Unknown Speaker: Are they available?

Mr. Caruso: Some of them I am sure had been for sale, your Honor, since 1971.

Unknown Speaker: You just want this particular piece of property.

Mr. Caruso: I think we do want.

Unknown Speaker: Lease zone.

Mr. Caruso: That is right, Your Honor.

Unknown Speaker: That is the only thing in this case.

Mr. Caruso: That is right, Your Honor.

One of the statements that was made by a counsel was that seven other parcels were for sale at that time.

Those parcels were not for sale, and they could not be used for low and moderate income housing because there is a limit of $2,000 per unit in each of the homes.

Unknown Speaker: Does every unit, does every village in this country have to have low cost housing?

Mr. Caruso: No, Your Honor.

The Arlington Heights...

Unknown Speaker: Why does Arlington have to have?

Mr. Caruso: Arlington Heights is a unique situation.

A tremendous growth from 1950, 8,000 people to now 64,884 people, the growth and jobs which is set for a 100,000 jobs in that area, the movement of jobs from Chicago to that area.

There are probably six communities like Arlington Heights in the Chicago Metropolitan Area that would be in the category that we are here showing; the tremendous growth, the exclusion of blacks.

The explanation of that situation and the lack of any evidence at any good faith effort is anywhere involved in these municipalities to deal with the situation or to responsively assist in solving the problem.

Here a not for profit developer of the highest quality has offered the town an opportunity, with a 190 units, to solve this situation and all we are asking is that the town stand aside and allow the purpose of Congress to provide for fair housing throughout the United States and the department of housing and urban development to create opportunities outside the traditional ghettos.

For Arlington Heights to stand aside and allow us to do that and it is not the parade to horrible sub-striking down zoning.

There maybe six of these communities out of a 157 in Chicago metropolitan area, there are maybe six around other large metropolitan areas where businesses move to the suburbs, the jobs are moving out there, but the minorities cannot follow the jobs and are required to give up the opportunity to work or to drive these tremendous distances, to and from the job.

In addition, the zoning around this piece of 15-acre parcel is vacant at the present time to the north and to the west.

To the east there are 17 single-family homes which actually have bought the property.

To the north is an open space, which is the playfield of the football practice field for the high school and to the west is a communal living facility in which the various clerics live.

It is a three-storey, very large building which is the nature of the living facility for the people working for and participating in the training of the high school and other St. Viator Institutions.

To the south is a highly traveled street, Euclid Avenue that runs to the Arlington Heights racetrack and there is a testimony that it is a very highly traveled business street to the south of that of single-family homes.

And to the south and to the west are 88 acre parcel are some single family homes which are of the lesser prices, $30,000-40,000.

We are not asking the town to do any affirmative duty, in the cases that the counsel cites do not relate to this case.

This is not a Lindsey v. Norman case.

We have gone through the cases he has cited in the brief, this is not that case.

This is a case where there is no requirement on the village.

The tax impact study, which is in the record, shows that per people income from this development will be higher than if it were a single family per people.

The income to the village would be higher than if it were a single family, so the village will make money on this development.

There is no problem with water, sewer, the traffic problem is slight and…

Unknown Speaker: Presumably, the zoning decision was made with awareness of all those factors, was it not?

Mr. Caruso: Yes, your Honor it was, and that is one of the things, it is extraordinary in the totality of facts.

All of the evidence presented by all of these experts: Bart and Ashman a leading traffic study, tax impact people, experts on housing and urban development.

All of these range of experts were all in the record and all show that is was a good zoning, valuable.

There was no objection by any of the engineer of the village, the police chief, the fire chief, any one in the village, they approved it.

There is a sheet where they approved this development.

Unknown Speaker: Well, of course if there had been an application here for high rise cluster, high rise apartments, they might have been able to show that there could be three or four times the tax revenues would be produced either by present zoning or by your proposed zoning, but would that be…

Mr. Caruso: I think that is a completely different thing and that does not.

Unknown Speaker: You are emphasizing the benefits.

The zoning authority was obviously aware that there were benefits and then they included there were detriments and they waived them and made the decision, is that not so?

Mr. Caruso: I think that the point I am trying to make is that the all of the information before them showed the benefits.

They did not have any information before them that showed anything, but this was a good development.

They have a planner, who is professional planner, who is employed by the municipality and he testified that no one ever asked him his opinion.

He reviewed it.

He testified he reviewed it, this is a professional planner, whose responsibility is to review these plans, he reviewed it; he testified he had reviewed it.

They never asked him his opinion and there is no evidence that they ever ask anybody else.

So that all the evidence here shows it was a good development.

It met all the criteria and in 60 other cases Your Honor, they had approved other zoning and counsel has referred to the maps, these zonings are all over Arlington Heights and 53 of those abut single-family homes and in some cases, they abut much fancier single-family homes than are involved here.

The process in Arlington Heights is to approve all these zonings everywhere except where ours is and although the Court found that there was not a yet wall type of violation.

The Court did find that their process of approving was not uniformly followed.

To compare it, let us say to Washington v. Davis, this would be like giving a police test whenever you thought you should and whenever whites failed it allowing them to be on the force, but when blacks fails it not allowing them to be on the force, that is the situation here.

Sometimes they apply the test to white developments.

Sometimes they turn down white developments for certain reasons, but whenever the development comes in it would be racially innovated, then this test is used to keep them out and that is the process of what sometimes referred to as a holding pattern zone.

Everything is held as R-3.

When someone comes in on our pride like these 60 other cases, they then approve them after looking at who the developer is; whether, it can be assured that that developer will bring in the right people and whether or not it should be approved, but in 53 of those cases, the argument that is made here that it abuts single families was disregarded completely.

Unknown Speaker: (Inaudible)

Mr. Caruso: Your Honor, we think that the Court of Appeals in analyzing the totality of facts and the record here is mostly documentary.

All of the documents were stipulated to before the case was brought to trial and the record builds on that documentary evidence and reviewing that documentary evidence, the Court of Appeals analyzed Valtierra and although maybe did not completely anticipated Washington v. Davis, did talk in terms of the fact that racial impact alone was not enough to create a constitutional violation and then went on to talk about the racial hostility, to talk about the fact that the village board recognized that the people have this animus and that they have a mandate from the people not to approve this type of project.

I think in the totality of Washington v. Davis, it seems to me recognized that the police force had tried to find people to fill these positions and when did not show up after they passed the test they went out and try to get them and try to bring them in to get them on the force.

Under the totality of facts in Washington v. Davis is a completely different atmosphere, attitude and background than there is on these all white community, which has developed in a way to exclude blacks from that municipality.

Unknown Speaker: Mr. Caruso, did you class your statutory claim as a separate issue in the lower courts?

Mr. Caruso: Yes, we did Your Honor.

In both the District Court and the Court of Appeals, we urged the violation of the 1968 fair house.

Unknown Speaker: Did you ever specify a section?

Mr. Caruso: Your Honor, in the District Court, the discussion was not brought up where we had an opportunity to explain to judge the operation of 3604 that is to make housing otherwise unavailable or 3617 violation.

Unknown Speaker: And is that one of your issues you pressed in the Court of Appeals?

Mr. Caruso: We did, we did.

Unknown Speaker: Is there anything in the Court of Appeals’ opinion about it?

Mr. Caruso: No there is not, Your Honor.

Unknown Speaker: Well, how did the Court of Appeals moved directly to the constitutional issue without dealing with the statutory question first?

Mr. Caruso: Your Honor, I do not think I can answer that.

Unknown Speaker: Well, do you think, the Court of Appeals then dealt with your statutory issue or not?

Mr. Caruso: Your Honor, I just cannot say it whether or not they did.

Unknown Speaker: Well do you think you raised the -- do you think you named the statutory issue as one of your questions in your petition for certiorari?

Mr. Caruso: In our response here, Your Honor?

Unknown Speaker: Are you pressing it here?

Mr. Caruso: Yes, your Honor, we are.

Unknown Speaker: And to sustain the judgment below.

Mr. Caruso: Yes, Your Honor.

We believe that the constitutional judgment below may be sustained.

We also believe that the violation of the 1968 fair housing.

Unknown Speaker: The Court of Appeals has never dealt with the statutory issue.

Mr. Caruso: That is right, Your Honor, but we believe that this Court could determine on the statutory basis a violation of the 1968 fair housing law, under 3617 or under 304.

Unknown Speaker: And all you have to say about that is in your brief?

Mr. Caruso: Yes, Your Honor.

Justice Byron R. White: Can it be inferred that the Court of Appeals did deal with the statutory claim, they certainly mentioned on (a)(3), I am reading this opinion on (a)(3) of the appendix, and then moved right on to the constitutional question and if it was doing anything like what Appellant Court ought to do or any Court ought to do, it was by moving out of the constitutional question, it was holding that there was nothing to the statutory claims, was not it?

Mr. Caruso: I have not read it that way, Your Honor.

I cannot explain as Justice White has indicated, I cannot explain what was in the minds of the Court of Appeals.

Justice Byron R. White: I cannot either, but applying normal standards of that Court is supposed to do that would be their logical inference, would it not?

Mr. Caruso: Well, Your Honor, I…

Justice Byron R. White: Do not raise your constitutional question unless it is absolutely necessary to do so.

Mr. Caruso: I would believe that is correct and I would argue however that we believe that the Court could rule with respect to the Fair Housing Act of 1968 and we would urge the Court to consider that as well as the constitutional issue and we are continuing to urge that.

And one of the reasons that we have continued to urge that is that the Congress has in applying and accepting its responsibility, interpreted the problem of fair housing and discrimination with respect to housing as one of the most important and as in the Tropic County it was stated a matter of the highest priority and has interpreted the discrimination on housing issue in the context of 1968 and indicated how complicated and sophisticated the discrimination is by going into refusing to sell, making otherwise unavailable, denying housing when in fact it is a housing, if it is available.

Unknown Speaker: Do you think that a municipal corporation like Arlington Heights can be discovered by the provisions that you are talking about of 1968 Act, that it is a person?

Mr. Caruso: No, I believe it is a person and also a corporation as mentioned by the Act Your Honor.

Unknown Speaker: Do you think that applies to a public municipal corporation?

Mr. Caruso: Yes, I think it is because this is a municipal corporation of Illinois.

Unknown Speaker: The Court of Appeals’ opinion begins discussion of the legal issue by saying that the first contention that you raised was the equal protection.

They do not say the only contention and that surely implies as you suggested that you argued the statutory issue, which they had not referred to and as Justice Stewart suggested by all standards of reading an opinion that means, they have denied your statutory ground, rejected.

Do you agree with that?

Mr. Caruso: We just do not feel that they did that, Your Honor.

We cannot explain why we did present what we thought was a good definition of what the 1968 Act was meant to do and that it did apply and we did urgent and all I can say is I would continue to urge that the 1968 Act be considered and considering this case and I believe this Court could consider it even in light of what maybe some indication in the Court of Appeals.

The situation with respect to the zoning and the preparation of the Arlington Heights development indicates that in comparison to the other developments that were further approved, it would meet the general requirements of the municipality and that the zoning could have been approved in the accordance with the procedures that were followed by the municipality.

We believe that the evidence does show that there was substantial purpose on the part of the municipality and that the evidence shows further that they did not present any facts or reasonable explanation as to why the development had been turned down and that is part of the totality effects.

We also, in connection with the descent, we have reviewed the record and the record indicates that none of the seven or nine parcels were available.

Both of Mr. Kane’s testimony where he indicates the prices of these, some of them were $50,000 an acre, some of them $42,000 an acre, indicates there were no other R-5 parcel zone.

That it could have been used because of the $2,000 limit per unit under HUD.

Mr. Apelko, their own appraiser indicated that $20,000 was the only parcel he knew for single-family in Arlington Heights and the multiple-family would all be hired in that and therefore priced out of the market.

Several of the seven parcels were too small; they were five or six units.

In others, we have flooding problems and the others were not for sale or were overpriced.

There was just no other opportunity, and besides that the only way this development can be dealt, is where the opportunity comes along that a religious order such as the clerics of St. Viators makes this property available to a particular developer and with that property available to the developer, the opportunity to make this housing available opportunity bases arises.

MHDC built a similar project for low and moderate income people, 212 units.

They have been involved in other developments.

They have a record of showing, they can bring in minorities and whites to provide a truly integrated development and that is what would be done here.

That is the purpose of MHDC.

That is why these people are on the boards of directors of the leadership council and MHDC are working so hard on this.

We urge the Court to affirm the decision of the Court of Appeals as being in accordance with Washington v. Davis and meeting the general framework where required.

The question on motivation and purpose needs further inquiry.

One opportunity would be to go back and to go into that, but we feel that is not necessary on this record.

We urge the Court to allow that Court of Appeals opinion to stand so that we can get on with building what we believe will be a very fine and helpful development in the village of Arlington Heights.

Chief Justice Warren E. Burger: Thank you Mr. Caruso.

Do you have anything further Mr. Siegel?

Rebuttal of Jack M. Siegel

Mr. Siegel: Yes sir, if the court pleases.

I would point out first of all that the village of Arlington Heights rejected 34 applications for multiple housing, which did not involve low or moderate income housing.

Simply because they did not meet the criteria of our planning principles including the buffer zone, which the trial court and the Court of Appeals found we were applying in an non-discriminatory manner.

As a matter of fact, as Mr. Caruso says you will find that some of those 60 approvals were contiguous to single family zoning.

There is no question about that.

That is the whole idea.

You use multiple-family as a buffer between more intense and single-family development.

I would point out that there own witness Mr. D.V. Zay characterized Arlington Heights as a dormitory suburb and it had the least industry, the least commerce of the communities around it.

So when Mr. Caruso says all the jobs are moving to Arlington Heights, his own witness does not believe that.

Now, the fact of the matter is that the record showed that Mr. Hansen, the village manager, and Mr. Kessler, the village planner were prepared and offered to find other sites for MHDC in Arlington Heights.

The 212-unit project, which is the only new project they have ever built, is located three quarters of a mile away from Arlington Heights, much closer to our industrial area than Lincoln Green is, so that they are in the Arlington Heights area now and they have no problems.

Now, when Mr. Caruso says that there has been an effort to zone out blacks here, this is just not the fact.

We have permitted over 6,000 apartment units.

Mr. Kessler testified that those apartments range from a $160 a month up.

There were over 6,000 apartments and an additional 9,000 zoned at the time of trial.

So to say that we are trying to zone out.

Unknown Speaker: In the 6,000 and how many Negros?

Mr. Siegel: There are 200, Your Honor, according to the...

Unknown Speaker: Out of 6,000.

Mr. Siegel: No sir, 200 out of 71,000 people, there are 200 blacks.

Unknown Speaker: You are talking about all these apartments.

Mr. Siegel: Yes sir.

Unknown Speaker: How many Negros are in these apartments?

Mr. Siegel: I cannot answer that, Your Honor.

I do have a copy of our...

Unknown Speaker: Well, it would be less than 200, would it not?

Mr. Siegel: Yes sir, it would.

Some of them are in single-family homes, but the village is zoned.

Unknown Speaker: It was not single-family home?

Mr. Siegel: That is correct, Your Honor, but the village or zoning has not done these.

What Mr. Caruso is really arguing is we have a different set of zoning laws for poor people.

What he is saying is that Arlington Heights land is too expensive for a conventional multiple family development, except for, pardon me, is too expensive for 235 or 236, but that is not the test of a zoning ordinance, how expensive land is?

Thank you very much, Your Honor.

I ask that the Court of Appeals be reversed.

Chief Justice Warren E. Burger: Thank you Gentlemen.

The case is submitted.