Full opinion text
OPINION DIAMOND, District Judge. On December 12, 1994, this court conducted a hearing to determine whether it should grant final approval of a consent decree offered as a resolution of this civil rights class action. At the conclusion of the hearing, the court (1) found that the consent decree was a fair, adequate and reasonable resolution of this litigation; (2) granted final approval of the consent decree pursuant to Fed.R.Civ.P. 23(e); and (3) entered the consent decree as an order of the court. This opinion will formalize and supplement the court’s rulings made on the record in open court during the hearing. I. Background Plaintiffs filed this lawsuit in 1988 against the Department of Housing and Urban Development (“HUD”), the County of Allegheny (the “County”), the Allegheny County Housing Authority (“ACHA”), and the Redevelopment Authority of Allegheny County (“RAAC”), to remedy the alleged establishment of de jure racial segregation in public and other federally assisted housing in Allegheny County, Pennsylvania, and the alleged perpetuation of and failure to disestablish that segregation. On October 15, 1992, a plaintiff class was certified consisting of “all black current residents in, or applicants for, public housing assisted by the ACHA and/or HUD, who have been and continue to be denied decent, affordable, and racially integrated public housing opportunities.” See Opinion and Order, October 15, 1992. In 1993, HUD admitted liability for failing to affirmatively further fair housing in the ACHA public housing program; a violation of Title VIII of the Civil Rights Act of 1968, 42 U.S.C. § 3608(e)(5). In January of 1994, HUD assembled a task force with expertise in all of the various programs at HUD, to develop a desegregation plan for Allegheny County. That effort resulted in a plan which served as the basis for the consent decree offered as the settlement of this litigation. The parties sought and obtained the court’s preliminary approval of the consent decree on August 31, 1994. Notice of the consent decree, as approved by the court, was given to all class members, including those individuals with African American or bi-racial family members, by mailing notice by first-class mail to the last known available address of all current residents in ACHA public and Section 8 housing and all current applicants for ACHA public and Section 8 housing and by publishing such notice once each week for two weeks in the Pittsburgh Post Gazette and the New Pittsburgh Courier. Individual notice was mailed to 9,455 persons, approximately 5,000 of whom were members of the class. The class notice was designed to acquaint class members with the scope and nature of the consent decree in a concise and easily understood format. Rather than risk confusion by describing in detail the complicated and lengthy provisions, the notice emphasized major provisions and explained the character of the consent decree and its intended purpose. This summary was complimented by italicized warnings informing the reader that the notice was only a summary and that review of the consent decree was necessary to learn all of its terms. The notice also explained succinctly how interested persons could comment or object to the proposed consent decree, in writing, and if desired, at a fairness hearing to be conducted by the court. Written submissions in response to class notice of the consent decree were filed by five persons, three of whom were class members interested in the resolution of the litigation. Of a possible 5,000 class member responses, only one class member, Davida Brooks, stated that she had an objection to the consent decree. The fairness hearing was held as provided for in the published notice on December 12, 1994. Counsel expressed their views in support of the consent decree. All of those who wished to be heard were given the opportunity. II. The Consent Decree The objectives of the decree are to decrease the level of racial spacial separation in federally assisted housing programs and the private housing market in Allegheny County, and to increase desegregative housing choices and opportunities for class members and other low income persons. Section II of the decree, which defines significant terms within the decree, describes the creation of a “Task Force.” The Task Force will consist of representatives or designees of the parties, a Fair Housing Services Center created under the terms of the decree, and community based organizations selected by the plaintiffs and HUD. The Task Force will be the entity to select sites for the development of new units and to implement certain critical community development provisions of the decree. Section III of the decree governs the siting of all replacement units in Allegheny County. This section provides for the construction of 100 units of public housing to replace those units demolished at Talbot Towers. These units and all other units will be developed as scattered site units, in clusters of between one and twelve units, and will be developed in defined areas of the county to provide class members with housing opportunities outside of racially identifiable and low income impacted communities. Section IV of the decree provides for physical improvements to public housing developments and the surrounding neighborhoods to reduce disparities and to facilitate desegregative housing choices. To determine what improvements should be made, HUD will prepare and administer a tenant survey, and HUD will list those amenities enjoyed by tenants at identifiably white developments. The decree requires the ACHA to establish priorities and provide these amenities according to those priorities. In addition, the decree requires the ACHA to eliminate any deficiencies in the enforcement of HUD’s housing quality standards, and eliminate any disparities found by HUD and maintenance services among its developments. Section V of the decree requires the parties and the Task Force to use funds provided under the decree to leverage other federal, state, and private resources to eliminate vestiges of discrimination and segregation throughout the County. The decree is designed to redirect resources so that more home ownership assistance and development of affordable housing and employment opportunities can take place in impoverished African American communities, while traditional public housing assistance can be used in white communities of higher 'income populations that have barred the use of such assistance within their borders in the past. This section of the decree also calls for the demolition and replacement of dilapidated or obsolete units as scattered site units outside of racially identifiable and low income impacted communities. In addition, adequate transportation and police protection are to be provided at all of the ACHA’s public housing developments. The decree provides that the Task Force will be the entity to implement the extensive community development provisions of the decree. The Task Force will identify mechanisms for the targeting of resources, including all federal, state, local, and private resources, identify and develop a plan of housing and community and economic development activities and opportunities provided for in the decree, and approve all projects and expenditures related to community and economic development in the decree. Section VI of the decree calls for the eventual merger of the public housing and Section 8 waiting lists. Individuals on the two lists will first be cross-listed, so that individuals may be offered, but not penalized for rejecting, a unit for which they did not apply. After one year, the lists will be merged so that an applicant will be offered a range of all available desegregative housing opportunities, which may include conventional public housing, Section 8 tenant based assistance, and other assisted housing units. Each applicant will receive counseling by a nonprofit Fair Housing Services Center (“FHSC”), created under section VII of the decree, at the time he or she is made an offer or offers. This section provides that the ACHA jurisdiction initially will be divided into four regions so that, if an applicant is offered a desegregative opportunity outside his or her home region, he or she may reject the offer without penalty. If no desegregative opportunities are available, the applicant will be offered other available units, but may wait for a desegregative housing opportunity. If an applicant is offered, but rejects, a desegregative housing opportunity in his or her home region, except where good cause is shown, the applicant would move to the bottom of the waiting list. Section VII of the decree creates the FHSC which will counsel each applicant at the time he or she is offered housing in the County and assist applicants in considering and making desegregative moves. The FHSC also will perform marketing and outreach services to help increase the number of landlords in identifiably white areas willing to accept Section 8 certificates. The decree also creates a mechanism for the offering of assisted housing units through the FHSC, which will further increase the desegregative housing opportunities available to class members. This section also creates a Section 8 Mobility program that provides class members with 450 desegregative Section 8 certificates. To ensure that low income persons such as class members are able to use Section 8 assistance in units that are decent, safe, and sanitary, the ACHA will obligated to inspect a certain number of units to determine whether HUD’s Housing Quality Standards are being met. Section VIII of the decree requires that HUD conduct a study, or Housing Opportunities Analysis, to determine whether class members actually have housing opportunities in areas previously closed to them, and whether additional assisted housing should be provided to enhance class members’ desegregative housing opportunities. Section IX of the decree provides for the commitment of extraordinary expenditures, or those expenditures over and above those resources that would be provided to the County and the ACHA in the normal course, for a period of seven years. This section also ensures the defendants’ compliance with the terms of the decree. The defendants are enjoined to implement the decree and take all actions necessary to fulfill its obligations. In addition, the court will retain jurisdiction over the case for at least seven years. The court may then extend its jurisdiction over one or more of the defendants if the court determines that any of the defendants has not fulfilled its specific obligations under the decree, or the ACHA’s low-income housing programs are not desegregated to the extent practicable. III. Approval of the Consent Decree A. Standard Under Rule 23(e) of the Federal Rules of Civil Procedure, a class action settlement must meet with the approval of the court. In exercising its sound discretion, the court must determine whether the settlement is fair, adequate, and reasonable. Walsh v. Great Atlantic & Pacific Tea Co., Inc., 726 F.2d 956, 965 (3d Cir.1983). Relevant to this determination are the following factors: ... (1) the complexity, expense and likely duration of the litigation ...; (2) the reaction of the class to the settlement ...; (3) the stage of the proceedings and amount of discovery completed ...; (4) the risks of establishing liability ...; (5) the risks of establishing damages ...; (6) the risks of maintaining the class action through the trial ...; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of the best possible recovery ...; (9) the range of reasonableness of the settlement fund to a possible recovery in light of all attendant risks of litigation.... Girsh v. Jepson, 521 F.2d 153, 157 (3d Cir.1975). We now proceed to an examination of these factors. B. Evaluation of the Consent Decree 1. Complexity, Expense and Likely Duration of the Litigation. Litigation of the constitutionality of the housing policies and practices of the defendants spanning the last five decades has been complex and burdensome. It is anticipated that a trial of this matter would last for three weeks or more. To determine the constitutionality of the policies and the practices of defendants, the court would have to hear evidence on the alleged role of HUD’s predecessor agencies and the local defendants establishing public housing on a segregated basis, their perpetuation of and failure to dismantle the vestiges of housing segregation existing throughout Allegheny County and the degree of segregation in public and assisted housing that has injured class members. Expert testimony would be offered to explain the degree of segregation measured in Allegheny County’s public and assisted housing programs and the private market, and the remedies required to dismantle that segregation, which would be complicated, time consuming, and expensive. 2. The Reaction of the Class to the Settlement. Class members were provided with individual notice of the provisions of the consent decree and the right to file timely objections. Of 9,455 residents of and applicants for ACHA housing that were mailed notices, approximately 5,000 of those are projected to be class members, i.e., African Americans. As of November 15, 1994, the deadline for filing objections or comments to the consent decree, the court received five submissions. Of the five submissions, two responses were from non-class members who claimed they were not interested. Given the fact that only one of the other three submissions was referenced as an objection, out of a class of 5,000, 99.98% of the class appears to favor the agreement. Overwhelming support of the class for the decree weighs heavily in favor of the adequacy of the settlement. See Metropolitan Pittsburgh Crusade of Voters v. Pittsburgh, 686 F.Supp. 97, 101 (W.D.Pa.1988). Although the three submissions deserve the court’s thoughtful consideration, they do not warrant disapproval of the consent decree. One class member, Willa Mae Koon, raised a complaint about the ACHA because of the delay inherent in receiving an offer of Section 8 assistance, which was not relevant to the adequacy of the decree. There is no basis for assuming that the decree will affect the length of time individuals must wait to receive Section 8 certificates. Another class member, Leah Evans, complained about the lack of affordable, safe housing available for the use of Section 8 assistance. The consent decree provisions calling for the enforcement of HUD’s Housing Quality Standards, designed to ensure that Section 8 is used to subsidize only decent, safe, and sanitary housing, and the provision of counseling, marketing and outreach by the FHSC actually aim to increase the number of landlords willing to accept Section 8 assistance for decent, safe, and sanitary units in non-impacted neighborhoods. Finally, the submission of Davida Brooks, the only class member submission referenced as an “objection,” appears to point out the value of living in a black community and to express concern over an insufficient number of black communities. It is unclear whether this class member currently lives in what she considers a “black community” and would like to remain in that community, or whether she would like the option to choose among a greater number of communities open to African Americans. The decree addresses both concerns. First, it sets out to improve black communities in which a substantial number of federally subsidized units are sited. These communities generally have undergone decline and disinvestment. The decree, therefore, attempts to target improvements to identifiably African American public housing developments and the neighborhoods in which they are located to equalize conditions at all developments and neighborhoods and to provide for community and economic development. Second, the consent decree seeks to maximize the number of communities open to African American residents of or applicants for public housing or Section 8 rental assistance. The FHSC will provide class members with counseling and support services to help each individual consider public and federally assisted housing and the use of Section 8 certificates in neighborhoods that provide enhanced educational, employment, commercial, and social opportunities. 3. The Stage of the Proceedings and the Amount of Discovery Completed. The consent decree in this case has been reached only after extensive investigation, research, discovery, and briefing. Full discovery included written discovery, document production, and depositions. All parties submitted motions for summary judgment, pretrial statements, and proposed findings of fact and conclusions of law. Because all pretrial preparations have been completed, the parties and the court are in the best possible position to evaluate the risks of establishing liability and the extent of relief that may be awarded after a trial and thus to determine whether the decree is fair, adequate, and reasonable. 4. The Risks of Establishing Liability. Plaintiffs’ counsel recommended approval of the consent decree not because of any perceived weakness in their ease against HUD, the ACHA, the County, or the RAAC. Rather, because of the strength of plaintiffs’ case and the liability already established through HUD’s stipulation, the parties negotiated a decree affording the class with comprehensive relief. The comprehensive relief provided by the decree satisfies the factors relevant to determining the decree’s fairness and also obviates the need for full litigation of liability and remedy. 5. The Range of Reasonableness of the Settlement Fund in Light of the Best Possible Recovery and the Attendant Risks of Litigation. The court has determined that the relief provided in the decree is well within the range of reasonableness in light of the best possible recovery and the attendant risks of litigation. Harris v. Pernsley, 654 F.Supp. 1042, 1052 (E.D.Pa.1987). The Supreme Court has considered appropriate remedies for long-standing segregation in housing. In Hills v. Gautreaux, 425 U.S. 284, 96 S.Ct. 1538, 47 L.Ed.2d 792 (1976), the Court found that once a constitutional violation is shown “the scope of a district court’s equitable powers to remedy past wrongs is broad,” id. at 297, 96 S.Ct. at 1546 (quoting Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15, 91 S.Ct. 1267, 1275-76, 28 L.Ed.2d 554 (1971)), and “all reasonable methods [are] available to formulate an effective remedy.” Id. (quoting North Carolina State Board of Education v. Swann, 402 U.S. 43, 46, 91 S.Ct. 1284, 1286, 28 L.Ed.2d 586 (1971)). The Court requires that “every effort should be made by a federal court to employ those methods to achieve the greatest possible degree of [relief], taking account the practicalities of the situation.” Hills, 425 U.S. at 297, 96 S.Ct. at 1546 (quoting Davis v. Board of School Commissioners, 402 U.S. 33, 37, 91 S.Ct. 1289, 1292, 28 L.Ed.2d 577 (1971)). The parties labored intensively to draft provisions designed to desegregate the ACHA’s housing programs and provide class members decent, affordable, and racially integrated public housing opportunities. The result of this effort is a decree that provides the most comprehensive relief to date for victims of housing segregation and discrimination. For example, the decree provides substantial equitable relief that will alter the way in which tenants are selected and assigned to various public and assisted housing units. The waiting lists for Section 8 and public housing will eventually be merged so that applicants from one central list will be offered either type or both types of housing assistance, and so that the Section 8 list will no longer provide a means of escape for those wishing to avoid desegregative moves. Counseling will be provided to all applicants receiving an offer or offers of public or assisted housing, and supportive services will be provided to assist applicants in finding landlords willing to accept Section 8 certificates or in adjusting to new and unfamiliar neighborhoods. Significantly, HUD will help to encourage assisted housing owners or operators to fill vacancies through the FHSC by offering them a safe harbor from HUD monitoring of the owner’s compliance with affirmative fair housing marketing obligations. This provision will help to increase both the number of assisted housing units available for desegregation and the overall housing opportunities of class members. The decree also creates a mechanism for the siting of the 100 replacement units demolished at Talbot Towers and for all other new units to be constructed in the County. All new units are to be scattered site units (twelve or less) to eliminate the use of public housing as a means of concentrating and isolating African Americans in the County. Also, because the inability of the ACHA to obtain cooperation agreements with municipalities has worked to prevent the construction of public housing in much of the County, resulting in the racial segregation of public housing and the neighborhoods in which it is located, the decree provides that the County is an appropriate entity to enter into cooperation agreements with the ACHA. This provision will provide class members with desegregative housing opportunities that they previously have been denied. With regard to resources to be spent to accomplish desegregation, the class will receive the benefit of a substantial portion of the discretionary funds available to the Secretary of HUD, which is 5% of the total housing assistance available to HUD. 42 U.S.C. § 1439(a)(1). These discretionary funds are distributed “in support of desegregation efforts,” 42 U.S.C. § 1439(d)(4)(A), as well as among communities with housing needs resulting from natural disasters, emergencies, and the settlement of litigation. As previously noted, the decree provides the class with 450 desegregative Section 8 certificates to help remedy the lack of decent, affordable and rationally integrated housing opportunities in Allegheny County. The decree also generates federal and local resources for the replacement of 100 units that were demolished at Talbot Towers. These units, like all new units built in the County, are to be scattered site units. In addition, the decree contemplates additional public housing to replace demolished, obsolete or dilapidated housing, which will entail the future commitment of HUD’s budget authority. The decree requires Allegheny County to set aside 25% of its annual, allocable Community Development Block Grant (“CDBG”) funds for seven years to be targeted to seven municipalities to which African American use of public housing and Section 8 has been confined: Clairton, Duquesne, Rankin, Braddock, McKees Rocks, Homestead, and Wilkinsburg. Based on recent CDBG allocations, the decree will cause roughly $4,000,-000.00 per year for seven years to flow through community based organizations to be spent in neglected African American communities in Allegheny County. The decree also requires the County to set aside 25% of its existing, unencumbered CDBG funds as of July 1994, for funding of the FHSC and the Task Force until April 1995 and for targeted projects thereafter. From April 1995, the decree requires the County to use, over and above the 25% set aside, $500,000.00 annually for funding of the FHSC and the Task Force. The decree also requires that HUD provide funding for the FHSC in the amount of $200,000.00 for the first year and up to $200,000.00 per year for the succeeding six years. The decree also is written to ensure that those resources defendants are required to spend for seven years to accomplish desegregation are used to leverage other federal, state, and private funds. Defendants must specifically apply for all reasonably available assistance that would materially assist in performing the activities, objectives, and purposes called for in the decree. Thus, as the decree provides class members with wide array of housing and community development opportunities, it falls within the range of reasonableness. 6. Other Factors. The consent decree is the result of good faith, arms’ length negotiations. Harris, 654 F.Supp. at 1049. The parties participated in extensive negotiations from the time the court set the matter for trial in late May 1994, until the time that the decree was preliminarily approved on August 31, 1994. The decree is the result of intense, adversarial negotiations that involved not only each HUD Assistant Secretary, but also the Associate Attorney General of the United States. Furthermore, in evaluating the consent decree, the court may lend significant weight to the professional judgment of counsel participating in the litigation. Id. at 1055. In this case, the consent decree was negotiated and recommended by the court by highly experienced counsel, knowledgeable of civil rights class action litigation generally and housing desegregation litigation specifically. IV. Conclusion Because of the substantial discovery undertaken in this litigation, the complexity of the issues, the support of the class for the relief, HUD’s stipulated liability under Title VIII, and the fact that this may be the most comprehensive consent decree of its kind, the court finds that the decree is fair, adequate and reasonable as a resolution of this litigation. APPENDIX TABLE OF CONTENTS I. INTRODUCTION AND PURPOSE.225 II. DEFINITIONS 226 Non-Racially Identifiable Federally Subsidized Housing Developments.226 Non-Racially Identifiable Elderly Public Housing Development.227 Impacted Neighborhoods .227 Desegregative Housing Opportunity .227 Community-Wide Waiting List.227 Good Cause for Refusal of an Offer.227 Class Member.227 Task Force. 227 Scattered Site Housing.228 III. REPLACEMENT UNITS .228 A. Jefferson Borough Units.228 B. Sites for Remaining Units.229 C. Cooperation Agreements for New Public Housing .229 IV. PHYSICAL IMPROVEMENTS TO PUBLIC HOUSING DEVELOPMENTS AND THE SURROUNDING NEIGHBORHOODS TO ACCOMPLISH EQUALIZATION.229 A. Tenant Survey.229 B. Physical Improvements To Public Housing Developments.230 C. Physical Improvements to the Neighborhoods Surrounding Public Housing Developments and Infrastructure Improvements.231 V. OTHER MEASURES DESIGNED TO STABILIZE AND EQUALIZE PUBLIC HOUSING DEVELOPMENTS AND THE SURROUNDING COMMUNITIES.231 Federal, State and Privately Funded Programs .232 Competitive Federally Funded Programs.232 Obligations of the Parties .232 Allegheny County Community Development Block Grant Budget.232 Transportation.233 Police Protection.233 Anti-Crime Programs.234 Magnet Developments.234 Demolition and Replacement of Dilapidated Public Housing Units.234 VI. WAITING LIST INITIATIVES.234 A. Community Wide Waiting List.236 B. Housing Opportunities Waiting Lists .235 C. Offers.236 D. Transfers .236 E. Tenanting of New Housing.237 F. Good Cause Review Board .237 G. Waiting List Monitoring.237 VII. HOUSING MOBILITY PROGRAM.238 A. Fair Housing Services Center.238 B. Section 8 Mobility Program.238 C. HUD Assisted Housing.239 VIII. HOUSING OPPORTUNITIES ANALYSIS.242 IX. ENFORCEMENT.243 A. Injunction and Continuing Jurisdiction.243 B. Enforcement.243 C. Implementation and HUD Enforcement.244 X. LIMITATIONS BASED ON THE AVAILABILITY OF FEDERAL FUNDING.246 XI.ATTORNEYS FEES 245 XII. ADJUSTMENT IN ACHA OPERATING SUBSIDIES. 245 A. Current and Past Years. 245 B. Future Years. 246 CONSENT DECREE I. INTRODUCTION AND PURPOSE 1. Plaintiffs have asserted claims in this action against the United States Department of Housing and Urban Development (“HUD”), the County of Allegheny (“County”), the Allegheny County Housing Authority (“ACHA”), and the Redevelopment Authority of Allegheny County (“RAAC”) (collectively “Defendants”) asserting that each had a role in the establishment of de jure racial segregation in public and other federally assisted housing and residential housing patterns in Allegheny County, and that each has failed to disestablish and has perpetuated that racial segregation, in violation of the Fifth and Fourteenth Amendments to the Constitution of the United States, Title VI of the Civil Rights Act of 1964, Title VIII of the CM Rights Act of 1968, 42 U.S.C. §§ 1981, 1982 and 1983, and other federal statutes, regulations, and guidelines. 2. A Plaintiff class was certified in this action on October 15, 1992, defined as all African-American residents in, or applicants for, public housing assisted by the ACHA or HUD, who have been and continue to be denied decent, affordable, and racially integrated public housing opportunities. 3. HUD has stipulated to certain liability in this action under § 808(e)(5) of Title VIII, 42 U.S.C. § 3608, with respect to a failure to eliminate racial segregation in tenant selection and assignment in the conventional public housing program of the ACHA for the period from 1984 through April 1991. In addition, in a Final Investigative Report resulting from a 1991 compliance review of the ACHA, HUD made findings that the ACHA was in violation of Title VI and the regulations thereunder for the creation and perpetuation of racial segregation in its conventional public housing through its site selection, occupancy, waiting list, tenant selection and assignment, transfer, and other policies and practices, and that current and continuing practices perpetuated the intentional segregation practiced by the ACHA prior to 1965. HUD has not otherwise acknowledged any liability for the actions or practices raised in Plaintiffs’ claims. 4. Although the ACHA did not agree with HUD’s findings in the Final Investigation Report, or as to the need for desegregation of its developments, it agreed to resolve voluntarily the preliminary finding of noncompliance with Title VI and, without admitting to any violation of Title VI, agreed and consented to enter into a Voluntary Compliance Agreement with HUD. The ACHA has not acknowledged any liability for the actions of practices raised in Plaintiffs’ claims. 5. The County of Allegheny has not acknowledged any liability for the actions or practices raised'in Plaintiffs’ claims and enters into this Decree solely in consideration for the resolution of the claims against it and to the extent of its obligations herein. 6. The Redevelopment Authority of Allegheny County has not acknowledged any liability for the actions or practices raised in Plaintiffs’ claims. 7. Extensive investigation, discovery, and pretrial preparation has been undertaken in this action, in addition to the administrative process undertaken by HUD and previous administrative proceedings by the Pennsylvania Human Relations Commission. This action is scheduled for trial and all pretrial preparations have been completed. 8. The parties, or various combinations of them, have discussed the settlement of this action virtually throughout the litigation; indeed, some issues in this action were resolved or partially resolved by agreement of the parties early in the litigation. After lengthy negotiations, the parties have' determined to forego trial and reach a comprehensive resolution of the Plaintiffs’ claims and the Defendants’ defenses by entering into this Consent Decree. Therefore, the parties have agreed to the entry of this Consent Decree as an Order of this Court and to the terms of the Desegregation Plan for Allegheny County that it sets forth. 9. The purpose of this Consent Decree and the Desegregation Plan it includes (hereinafter “Decree”) is to set out a series of actions to be taken, and studies to be undertaken and further plans to be designed and implemented, to desegregate the ACHA’s housing programs, to increase desegregative housing choices and opportunities for class members and other low-income residents of Allegheny County, and to decrease residential racial segregation and racial spatial separation for all residents of the County. II. DEFINITIONS A. Non-Racially Identifiable Federally Subsidized Housing Developments 1. A non-racially identifiable family public housing development is one in which the African-American population of the development is between 38 and 58 percent. 2. A non-racially identifiable assisted housing development is a Section 8 development, Section 8 moderate rehabilitation development, and § 221(d)(3) Below-Market Interest Rate (BMIR) or § 236 development that is affordable to the Plaintiff class (see 42 U.S.C. § 1437a(a)), not restricted to occupancy by the elderly, in which the African-American population is between 38 and 58 percent. 3. An identifiably African-American development is one in which the percentage of African-American population exceeds 58%. An identifiably white development is one in which the percentage of African-American population is less than 38%. 4. Calculation and adjustment of the standard. The 38 to 58 percent range is derived from examination of the 1991 racial composition in the ACHA’s family public housing program, Section 8 program, and the combined Low Income Family Public Housing (LIPH) and Section 8 waiting lists. The range is equal to 10 percent above or below the 1991 African-American family tenant and applicant population of 48 percent. HUD shall reevaluate and modify the standard, if necessary, because of a significant change in the racial composition of the family tenant population or applicant pool or upon the availability of data regarding the racial composition of tenant and applicant populations of other assisted housing in Allegheny County participating in the single waiting list described in section VT.A. 5. Adjustments within standard. In applying the 38-58 percent standard at a particular development, appropriate adjustments may be made to take into account the effect of the racial composition of the development on the neighborhood, so that the desegregation of the development can facilitate the desegregation of the neighborhoods. Adjustments would be appropriate to accomplish the following: (1) white occupancy at the high end of the range in identifiably African-American developments in impacted neighborhoods; and (2) African-American occupancy at the high end of the range in identifiably white developments in non-impacted neighborhoods. Such adjustments are appropriate to desegregate the development and introduce a critical mass of opposite race residents into these communities. 6. Limitations. A development will not be considered non-racially identifiable if a pattern of segregation exists within a portion of the development. 7. Scattered Site Developments. Scattered site developments shall conform to the above standard of non-racially identifiable public or assisted housing developments, except that developments with between one and five units shall be tenanted and occupied as follows: developments with five units may have four or three African-American families, developments with four units may have three or two African-American families, developments with three units may have two African-American families, and developments with two units may have one African-American family. Under no circumstances is newly developed, scattered site housing to be tenanted only by one race unless there is only one unit on a particular site. Sites in non-impacted neighborhoods with one unit shall be tenanted by an African-American family. B. Non-Racially Identifiable Elderly Public Housing Development 1. A non-racially identifiably elderly public housing development is one in which the African-American population of the development is within 10 percent of the combined total percentage of elderly African Americans in occupancy and on waiting lists of the ACHA, adjusted for the difference between the percentage of the income-eligible African-American elderly population in the jurisdiction of the Allegheny County Housing Authority (eligibility), and the percentage of elderly African Americans in occupancy in the ACHA (utilization). 2. The adjustment in the range is made to account for the existing white racial concentration in elderly developments that is attributable in part to the historically segregated character of many of the elderly developments; and the segregated character of many of the elderly development sites. C. Impacted Neighborhoods Impacted neighborhoods are the following census tracts: 4923, 5606, 4869, 5604, 5232, 4824, 5170, 5611, 5615, 4928, 4868, 4882, 4881, 5153, 5612, 5614, 4838, 4440.99, 4508, 4560.01, 4940, 5231.98, 5138, 5129, 4644, 5211, 5151, 5235.01, 5140, 5610, 5128, 4867, 4451, and 5041. The remaining areas of the ACHA’s jurisdiction are referred to herein as non-impacted neighborhoods. As additional census or other data become available, the parties may agree on adjustments to include comparable neighborhoods in, or to remove neighborhoods from, the above list. D. Desegregative Housing Opportunity A desegregative housing opportunity is (1) an offer of a suitable unit in a public housing development that is not racially identifiable as to the race of the person given the opportunity, (2) an offer from an assisted housing development owner to obtain a suitable unit in an assisted housing development that is not racially identifiable as to the race of the person given the opportunity, (3) the use of a Section 8 certificate or voucher after appropriate mobility counseling by the Fair Housing Services Center to encourage desegregative housing choices, or (4) the use of one of the 450 desegregative certificates provided through the Section 8 mobility program described in section VII.B.1. An offer of a voucher or certificate under (3) and (4) must include the identification of at least one landlord, willing to accept a Section 8 certificate or voucher holder referred by the FHSC, with at least one appropriately sized unit in a non-impacted neighborhood that meets Section 8 program standards. E. Community-Wide Waiting List A community-wide waiting list for purposes of 24 C.F.R. § 1.4(b)(2)(h) is one waiting list that serves the Authority’s entire area of jurisdiction. F. Good Cause for Refusal of an Offer Good cause for refusal of an offer exists when an applicant can demonstrate through objective evidence that a move into the unit offered would result in a unique hardship related to the ability of the applicant (or a member of the applicant’s family) to retain his or her employment, to secure or retain peculiarly available day care or medical services, or in accordance with guidelines to be developed by the Review Board. (See section VI.F., below). Nothing in this provision affects the obligation of ACHA to reasonably accommodate a disability of the applicant or a member of his or her family. G. Class Member A class member is any African-American current resident in, or applicant for, public housing assisted by the ACHA or HUD, who allegedly has been and continues to be denied decent, affordable, and racially integrated public housing opportunities. See October 15, 1992 Order. An applicant or tenant that has an African-American or biracial African-American family member shall be considered a class member. H. Task Force 1.The parties to this action shall create a Task Force in order to perform certain functions in connection with the implementation of the remedies set forth herein. The Task Force shall be composed of representatives of each of the defendants, designees of counsel for the Plaintiff class, representatives of the Fair Housing Services Center created by the terms of this Consent Decree, and such other representatives of non-profit organizations, community-based organizations and community development corporations that HUD and the Plaintiffs may jointly select. The Task Force shall act on the basis of consensus, but may not act without the concurrence of the designees of the Plaintiff class and the representative of HUD. In connection with the selection and approval of sites, and the application for or selection of projects to be funded, as discussed in section V.D., the Task Force representatives of Allegheny County shall have no authority or responsibility for, and shall not participate in decisions of, the Task Force, and Allegheny County is obligated to perform only those functions otherwise performed in connection with the preparation and administration of federal, state and local programs. With respect to specific aspects of the projects or activities approved by HUD as part of the Task Force, the County shall be held harmless from any subsequent determination of noncompliance with any statutory or regulatory requirements. The County shall otherwise administer Task Force Projects as a part of the County CDBG program according to the administrative and financial guidelines applicable to that program. The County shall notify, in the normal course, the Task Force and HUD of any perceived impropriety identified through that normal monitoring and administrative process. 2. The Task Force shall: a. coordinate the selection of and approve the sites for new and replacement units of family public housing, as set forth in sections III.B, V.I., and VIII.; b. conduct a study to identify barriers to desegregative choices, identify mechanisms for the targeting of resources, and identify and develop a plan of housing and community and economic development activities and opportunities, as set forth in section IV.C.; e. approve all projects and expenditures provided for in sections IV. and V. as implementing the Task Force plan in section b., above; d. make a report identifying those developments that shall be designated as “magnet developments” pursuant to section V.H.; and e. assist HUD in performing the Housing Opportunities Analysis as set out in section VIII. 3. The defendants shall furnish the Task Force with necessary and appropriate information, cooperation, and available technical assistance. The Task Force shall retain the services of such planners and other professionals, not employees of the defendants, as may be required to conduct complete studies and design effective plans. The activities of the Task Force shall be funded through Community Development Block Grant funds administered by Allegheny County, as approved by HUD, and may be funded through other grants that the Task Force may seek. I. Scattered Site Development A scattered site development is one with between one and twelve units. III. REPLACEMENT UNITS A. Jefferson Borough Units. HUD has provided funding to the ACHA for the construction of 100 units of public housing to replace the units demolished at Talbot Towers. Jefferson Borough entered into a Cooperation Agreement with ACHA that allowed forty-four of the replacement units to be constructed in Jefferson Borough. Within 60 days of the adoption of this Decree by the Court, representatives from the ACHA and the Task Force will meet with appropriate representatives from Jefferson Borough to resolve any concerns the Jefferson Borough may now harbor about the replacement units and to ensure that construction of up to 44 units begins as expeditiously as possible. If the Jefferson Borough refuses to honor its Cooperation Agreement and facilitate the construction, HUD will take appropriate enforcement action against the Jefferson Borough. B. Sites for Remaining Units. Within 180 days of the entry of this Decree, the ACHA and the Task Force will complete a study of various desegregative sites throughout the County and shall select a variety of locations for the balance of the 100 replacement units. The Task Force shall choose among locations that provide desegregative housing opportunities in accordance with section VIII., below. These units, those to be developed in Jefferson Borough, and other new or replacement units must be scattered-site housing. C. Cooperation Agreements for New Public Housing. 1. HUD advises ACHA and Allegheny County that, in light of the claims presented in this litigation, based on applicable federal and Pennsylvania law, and the established practice and usage regarding cooperation agreements, Allegheny County is the appropriate unit of government with which the ACHA should enter into such cooperation agreements. Therefore, Allegheny County shall execute cooperation agreement(s), (which term includes one or more non-site specific cooperation agreements), in conformity with regulatory requirements, with the ACHA for the new public housing units called for in this Decree and hereafter developed in the jurisdiction of the ACHA. Such cooperation agreement(s) shall not obligate the County to (i) provide any municipal service not otherwise provided by the County, (ii) exercise any municipal function not exercised by the County, or (iii) enforce any municipal obligation. 2. If the sites selected for new public housing are in municipalities that do not voluntarily enter into cooperation agreements with the ACHA for the construction of the new units, the ACHA may, with the assistance of the parties hereto, seek to obtain cooperation agreements from those municipalities. In the event any municipality that is not a party to such a cooperation agreement refuses to extend the necessary or appropriate cooperation in the development or acquisition of the new public housing units or refuses to provide services to a development: a. the ACHA shall take all appropriate action to enforce the obligations imposed by law; b. HUD may initiate appropriate action against the municipality, including, but not limited to, the withholding or conditioning of federal funds or the commencement of a Secretary-initiated complaint under the Fair Housing Act; and e. Any party to this action may initiate any appropriate proceedings to secure enforcement of this Decree under federal or state law consistent with the provisions of section IX., below. IV. PHYSICAL IMPROVEMENTS TO PUBLIC HOUSING DEVELOPMENTS AND THE SURROUNDING NEIGHBORHOODS TO ACCOMPLISH EQUALIZATION Desegregation of the ACHA’s public housing developments has been hindered in the past in part by disparities between the physical plant and neighborhood conditions of identifiably white and identifiably African-American developments and between developments in non-impacted and impacted neighborhoods. Further, experience demonstrates that the reluctance of applicants and tenants to make desegregative moves, particularly to identifiably African-American developments, has impeded desegregation efforts. Therefore, the parties to this Decree shall undertake to equalize the conditions at all public housing developments and in their surrounding neighborhoods and provide physical improvements and amenities as inducements to desegregative housing choices. To accomplish this goal, the following actions shall be taken: A. Tenant Survey. HUD, in cooperation with Plaintiffs’ counsel and the ACHA, will prepare and administer a comprehensive survey of a statistically significant segment of the ACHA’s tenants and applicants on both the LIPH and Section 8 waiting lists (both class members and non-class members) to assist in determining the following: 1. the amenities at some public housing developments needed at other public housing developments to accomplish equalization among the developments; 2. the conditions in the neighborhoods surrounding public housing developments and needed improvements to those conditions; 3. the improvements and amenities that will motivate tenants to make desegregative moves, with special attention to elderly African Americans who may have been discouraged from applying for elderly public housing; and 4. the amenities that would make magnet developments effective. B. Physical Improvements To Public Housing Developments. To accomplish the goal stated in the introduction to this section, HUD will inspect the identifiably white and non-racially identifiable public housing developments and develop a list of amenities enjoyed by the tenants at those developments. This list of amenities may be modified, based on input from the Plaintiffs and on the information gathered by the tenant survey. A final list of the amenities that shall be provided at all public housing developments will be provided to the ACHA. 1.Funding Physical Improvements to Public Housing Developments. The ACHA shall, in consultation with HUD and Plaintiffs’ representatives, establish priorities among the amenities included in the final list prepared by HUD and shall expend its modernization funding in accordance with those priorities. a. HUD has provided the ACHA with Comprehensive Grant Program funds for the purpose of modernizing the public housing developments within its jurisdictions. ACHA will carry out its modernization program according to the terms of its Voluntary Compliance Agreement (VCA) of July 29, 1992. b. Any modernization plan approved (subsequent to the plan approved pursuant to the VCA) shall, to the extent possible, address the above list of priority amenities as part of the modernization at any public housing developments. c.Future modernization funding decisions shall ensure that the final list of amenities are provided at the public housing developments that do not have them. Notwithstanding this provision, ACHA shall maintain its developments as decent, safe, and sanitary as required by 42 U.S.C. §§ 1437, et seq. The amenities shall first be provided at all developments that are identifiably African-American. To the extent that it is determined that desegregation objectives are not being attained at developments that are identifiably African-American, the ACHA shall identify additional improvements or amenities to be provided and shall make every effort to seek additional funds to accomplish such improvements. Nothing herein shall be construed as requiring HUD to provide additional funding. The ACHA’s findings and any modernization plans shall be submitted to the Court and the parties. 2. Housing Quality and Accessibility Standards. In addition to providing the above amenities, the ACHA will ensure that all public housing developments meet or exceed Housing Quality Standards (HQS) and relevant accessibility standards (24 C.F.R. §§ 8.20, et seq.). Following input from the other parties, the ACHA shall prepare a listing of HQS deficiencies and develop and carry out a plan to eliminate those deficiencies. The findings and plan shall be submitted to the Court and the parties. Where necessary, the ACHA may use HUD-provided Comprehensive Grant Program funding for the inclusion of safety and security measures, including lighting and fences. 3. Maintenance. The ACHA shall also eliminate all disparities in maintenance services among the various developments and shall bring all developments up to the highest standard found among the identifiably white developments. This standard will be determined by HUD after a review of the history of maintenance services at the public housing developments and an on-site review of the conditions at all developments. HUD shall provide the ACHA and the parties with a report of its findings, setting out specific disparities and conditions to be corrected. The conditions to be addressed and implementation of the ACHA plan will be reviewed periodically to ensure that the level of services remains comparable. The ACHA shall prepare and submit a plan to eliminate the disparities, which shall be submitted to the parties and the Court. C. Physical Improvements to the Neighborhoods Surrounding Public Housing Developments and Infrastructure Improvements. 1. General Neighborhood Improvements. In an effort to eliminate disparities and promote desegregative housing choices, HUD will improve the vicinity surrounding ACHA family public housing developments by demolishing any vacant buildings that it now owns or may acquire in the future, if HUD determines that: (1) the housing is not needed; and (2) demolition would remove a source of blight from the vicinity. In the neighborhoods surrounding public housing developments, HUD will expedite the repair and/or sale of HUD-owned multi-family and single family property. If HUD expects to be owner of such a multi-family property for more than nine months, HUD will adopt and implement a Section 3 employment policy to provide employment opportunities for low-income property and neighborhood residents in the management, maintenance, and rehabilitation of the properties. 2. Improve Infrastructure. The ACHA shall, with such assistance as the parties may provide, through enforcement of a cooperation agreement with each local municipality in which an ACHA development is located, or otherwise, require the municipality to serve the ACHA developments with streets, lighting, and other elements of public infrastructure to the standard found in other stable neighborhoods in the local municipality where an ACHA development is not located. In neighborhoods surrounding ACHA developments, which neighborhoods show signs of deterioration, ACHA will require the municipality to institute a program of code enforcement to control the deterioration. Where appropriate, the County will assist municipalities in providing help to homeowners eligible for assistance to repair their housing code violations and otherwise support housing rehabilitation and stabilization efforts. To the extent these obligations exceed a municipality's resources, it may apply to the County and the Task Force for Community Development Block Grant funds. The Task Force may consider such requests in performing its functions described in section V.D., below. 3. Housing and Community and Economic Development Activities. The Task Force will study the neighborhoods within municipalities in which historically or identifiably African-American public housing exists, and municipalities in which high concentrations of Section 8 tenant-based assistance are utilized by African Americans. These municipalities are Clairton, Duquesne, Rankin, Braddock, McKees Rocks, Homestead, and Wilkinsburg. The Task Force shall identify federal, state, and local enforcement provisions, programs, and resources that could be utilized, and means of targeting such programs and resources to eliminate deterioration and provide non-deep subsidy housing, and identify community and economic development opportunities in those areas, to make such areas and the public and Section 8 housing they contain more attractive and desirable for desegregative moves. The Task Force in targeting resources under this paragraph shall give the first priority to neighborhoods surrounding public housing developments. The Task Force shall prepare and submit to the parties and the Court a report of its findings and a plan, and supplement, as necessary, specific recommendations regarding the above. The Task Force will also be responsible to make a report and recommendation on the developments that may be designated magnet developments (see section V.H.). V. OTHER MEASURES DESIGNED TO STABILIZE AND EQUALIZE PUBLIC HOUSING DEVELOPMENTS AND THE SURROUNDING COMMUNITIES Concurrent with the implementation of the equalization measures described above, the parties will undertake to eliminate, to the extent possible, any vestiges of discrimination that exist with regard to the ACHA’s assisted housing developments. In particular, HUD will exercise its discretion to this end, as appropriate, including, but not limited to, the authority of the Assistant Secretary for Fair Housing and Equal Opportunity to initiate investigations under the Fair Housing Act, as described in section IX., below. A. Federal, State and Privately Funded Programs HUD, ACHA, Allegheny County, and RAAC will identify and encourage, or apply for and utilize, to the extent practicable, available Community Development Block Grant (CDBG), HOME, Family Self-Sufficiency (FSS), Section 107 (Special Purpose Grants), Section 108, and other Federal resources (e.g., funds from the Departments of Energy, Education, Transportation, Labor, Health and Human Services, Agriculture, etc.), including employment opportunities through the implementation of Section 3, for non-deep subsidy housing and community and economic development in neighborhoods in which historically or identifiably African-American public housing exists and municipalities in which high concentrations of Section 8 tenant based assistance are utilized by African Americans (Clairton, Duquesne, Rankin, Braddock, McKees Rocks, Homestead, and Wilkinsburg). ACHA, the County, RAAC and the Task Force shall also actively seek out, apply for, and, if received, target to these neighborhoods funds reasonably available under any other appropriate federal, state, or privately-funded programs, including but not limited to, programs of the Pennsylvania Department of Community Affairs, Fannie Mae, Pennsylvania Housing Finance Agency and' the Low-Income Housing Tax Credit Program. The first priority of this section shall be on neighborhoods surrounding public housing developments. B. Competitive Federally Funded Programs To the extent not already provided for in funding programs for which HUD establishes or is required to establish competitive criteria on the bases of which applications for funding are granted, HUD will review competitive programs and assess the feasibility, impact, and effect of establishing a process that provides competitive advantage to applications designed to remedy vestiges of segregation in public housing programs that have been found to be segregated in a HUD Title VI review. C. Obligations of the Parties 1. Allegheny County, to secure funding for the Task Force, shall apply to HUD for a technical assistance grant pursuant to section 107(b)(4) of the Housing and Community Development Act of 1974. The County shall also apply for all reasonably available assistance, and for assistance under programs and sources of funding that become available under Court approval of the Decree, that would materially assist in performing the activities, objectives, and purposes called for in this Decree. 2. The ACHA shall apply for all reasonably available assistance, including modernization and new construction, and for assistance under programs and sources of funding that become available after Court approval of the Decree, that would materially assist in performing the activities, objectives, and purposes called for in this Decree. 3. RAAC shall apply for reasonably available assistance, and for assistance under programs and sources of funding that become available after Court approval of the Decree, that would materially assist in performing the activities, objectives, and purposes called for in this Decree at the request and direction of the Task Force. D. Allegheny County Community Development Block Grant Budget 1. In addition to the above, Allegheny County shall set aside for expenditure on projects selected by the Task Force, and approved by HUD, 25% of its existing unencumbered CDBG funds, as of July 19, 1994, and an amount equal to 25% of its future annual allocable CDBG funds. “Allocable CDBG Funds” are the total amount of CDBG funds less actual Allegheny County administrative expenses. These funds shall be expended for housing and community and economic development programs (section IV. C.3.) and infrastructure improvements (section IV.C.2.), in accordance with the plan proposed by the Task Force, for seven consecutive years, commencing April 1995. The County shall have no financial obligation to fund any such amount other than from CDBG funds actually paid or pledged to it by HUD. These projects will be targeted to the municipalities of Clairton, Duquesne, Homestead, Rankin, Braddock, McKees Rocks, and Wilkinsburg. Thereafter, Allegheny County shall expend CDBG funds in these communities in an amount that is at a minimum proportionate to the share of the County CDBG amount attributable b