Opinion
CA 3-98-CV-436-R.
April 11, 2000.
MEMORANDUM OPINION
Plaintiffs are asserting two basic claims against the City, demolition of repairable homes without proper notice in violation of due process and in violation of the fourth amendment prohibition against unreasonable seizures and, second, racial discrimination in the City and HUD's program of federally funded code enforcement demolition of repairable single family homes. Plaintiffs are asserting one claim against HUD, racial discrimination in the City and HUD's program of federally funded code enforcement demolition of repairable single family homes.
The purpose of this Opinion is to explain this Court's October 7, 1999 class certification determinations. This Court GRANTED Plaintiffs' motion for class certification and certified the following classes:
The class certification determinations were made from the bench at the class certification hearing held October 7, 1999.
(1) Process Class: a Rule 23(b)(2) class composed of all property owners who had a repairable single family structure demolished by the City of Dallas' Urban Rehabilitation Standards Board ("URSB"): (i) and the City demolished the structure without providing the property owner notice of the opportunity to contest the proposed demolition at a hearing prior to the issuance of the order causing the demolition, (ii) and whose structure was demolished without a warrant. This class includes those owners who structures were demolished pursuant to a default demolition order.
(2) Race Discrimination Class: a Rule 23(b)(2) class composed of all persons who share the following characteristics: (i) owners of at least one parcel of real property on which a single family structure was placed, (ii) and which single family structure was a repairable single family structure that was demolished pursuant to a City URSB order, (iii) and either the owner is African-American or the repairable single family unit demolished pursuant to the City URSB order was located in a predominantly black census tract that was 50% or more non-Hispanic black according to the 1990 U.S. census.
This opinion will address, in turn, each of the requirements for class certification under Federal Rule of Civil Procedure 23.
A. Class Certification Standard
Under Federal Rule of Civil Procedure 23(a), a case may proceed as a class action if all of the following characteristics are met: "(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class." Plaintiffs have moved for certification under rule 23(b)(2), which also requires that "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole." As discussed below, plaintiffs have satisfied each of these requirements.
1. FRCP 23(b)(2) Requirement
a. Process Class
The plaintiffs allege that the City failed to give each member of the Process class one or more notices of important procedural events such as the hearing at which the USRB was going to consider entering a demolition order or the URSB's determination that the homeowner had defaulted on a previous repair order and that demolition would be ordered. The City, as a matter of policy, allegedly refused to obtain a warrant or other judicial process before it seized and demolished each class member's house. The alleged failure to give notice or to obtain a warrant is a failure to act on grounds generally applicable to the class.
b. Race Discrimination Class
Plaintiffs assert that the race of either the occupants of the area in which property is located or the race of the owner of the property is a factor in the decision whether or not to demolish otherwise repairable single family homes. They introduced both statistical and documentary evidence to support class certification of this claim under 23(b)(2).
Plaintiffs assert that the race of either the occupants of the area in which property is located or the race of the owner of the property is a factor in the decision whether or not to demolish otherwise repairable single family homes. They introduced both statistical and documentary evidence to support class certification of this claim under 23(b)(2).
Plaintiffs' documentary evidence shows that the current pattern of demolitions of repairable single family homes in predominantly black areas is consistent with and traceable to the City's past use of overt racial classifications to determine the treatment accorded to different neighborhoods. The present pattern of single family demolitions continues the targeting of predominantly black neighborhoods begun at the inception of the HUD and City's CDBG code enforcement and demolition program in the mid-1970s. This program was initiated in tandem with the City and HUD's social engineering of neighborhood service delivery based on overt racial classifications at the inception of the CDBG program.
The City of Dallas has a long history of using overt racial classifications of neighborhoods as a basis for a variety of City actions. Throughout the first 50 years of this century, the overt racial classifications were in the City charter and ordinances.See Liberty Annex Corp. v. City of Dallas, 289 S.W. 1067, 1069 (Tex.Civ.App. 1926); Liberty Annex Corp. v. City of Dallas, 19 S.W.2d 845 (Tex.Civ.App. 1929); Walker v. HUD, 734 F. Supp. 1289, 1294, 1294 n. 18 (N.D. Tex. 1989); Williams v. City of Dallas, 734 F. Supp. 1317, 1332 n. 16 (N.D. Tex. 1990).
A later stage of the overt use of racial classifications to determine the level and kind of municipal services in a neighborhood in Dallas, and federal, urban planning is shown by documents produced in the 1970s.
In 1975, the Real Estate Research Corporation ("RERC") authored for HUD, and HUD distributed, a manual for cities receiving the newly authorized Community Development Block Grant ("CDBG") program funding, "The Dynamics of Neighborhood Change." (See Plaintiffs' exhibit 2.) The authors claimed that the purpose of the manual was to help the municipal officials understand the process of neighborhood decline so that they could better counteract the process. (See Plaintiffs' exhibit 2 at 1.) The manual presents neighborhood decline as a process in which neighborhoods can be seen as in one of five states. The five states range from "Healthy" to "Abandoned." (See Plaintiffs' exhibit 2 at 7-13.) The manual lists a perceptible number of minority group members moving into or nearby a neighborhood as reasons for the decline in the market appeal of a neighborhood and factors, which can cause a `Healthy' neighborhood to begin the transition to a neighborhood in decline. (See Plaintiffs' exhibit 2 at 17.)
HUD continues to make this manual available. (See Plaintiffs' exhibit 2 at cover page.)
There is a chart which lists the characteristics of the various neighborhood types. Healthy neighborhoods have the following words or phrases in the neighborhood description: "Middle to High Social Status," "Moderate to Upper Income Levels," and "Ethnic Homogeneity." Incipient Decline neighborhoods have the following words or phrases in the description: "Influx of Middle Income Minorities," "Often Fear of Racial Transition," and "More Renters in Single Family Areas." The Clearly Declining list includes: "Decrease in White Move-ins" and "More Minority Children in Schools." The Accelerating Decline descriptions include "Predominantly Low Income/Minority Tenants" and "Predominantly Minority Children in Schools." (See Plaintiffs' exhibit 2 Fig. 2.) The text provides more detail on the meaning of the phrases in the chart. (See Plaintiffs' exhibit 2 at 23-30.)
"Residents of a healthy neighborhood are generally homogeneous — much like one another in terms of race, income, status, education and job. While this usually means that residents are predominantly white, with middle to high incomes, there are many moderate income `working class' neighborhoods that are perfectly sound. There are also some examples of neighborhoods that are totally or predominantly minority group that are `healthy.'" . . . "When people with characteristics as described above decide and continue to live in a particular neighborhood, its stability is virtually assured." (Plaintiffs' exhibit 2 at 23-24.)
"The people moving into a neighborhood in the incipient decline stage differ from the people moving out. . . . Sometimes the new residents are different racially or ethnically from the old residents. The old residents may become fearful of racial transition and less confident of the neighborhoods' [sic] future. . . . If the type of families living in a healthy neighborhood decide to leave and are not replaced by families of the same type, neighborhood decline begins." (Plaintiffs' exhibit 2 at 24-25.)
"Migration of low-income groups and minorities to urban areas and the perceived decline in the quality of urban life reduces the desirability of living in urban neighborhoods generally. Activities in adjacent areas, such as the building of a freeway, a hospital or low/moderate income housing also change a neighborhood's ability to attract residents." (Plaintiffs' exhibit 2 at 26.)
The description of Clearly Declining neighborhoods includes: "Residents may be racially mixed with increasing numbers of minority homeowners as well as low-income minority tenants." (Plaintiffs' exhibit 2 at 26.) "The exodus of white households increases as does absentee ownership. . . . A `clearly declining' neighborhood is particularly sensitive to rapid racial changes in nearby neighborhoods, increasing minority children in the schools. . . . "Public agencies recognize housing opportunities for welfare recipients and begin to make placements in the neighborhood. They may also sponsor low-income housing in the neighborhood." (Plaintiffs' exhibit 2 at 26-28.)
"Residents of a neighborhood in `accelerating decline' are almost all low-income minority tenants. . . . Owners are predominantly absentee whites who have little contact with their tenants. . . . The only people who are coming into the neighborhood are poor people of minority groups." (Plaintiffs' exhibit 2 at 28-29.)
HUD also adapted and promulgated a simpler version of the RERC neighborhood classification scheme which included the use of racial classifications to determine the viability of a neighborhood. The simpler version used the increase in minority persons as a factor in rating a neighborhood as one in either "Clear Decline" or "Heavy Decline," (See Plaintiffs' exhibit 3 at 1, 267-268.) HUD recommended the use of this scheme in the planning and evaluation of neighborhood revitalization programs. (See Plaintiffs' exhibit 3 at 1, 267-268.)
Both of these racial classification schemes are still distributed by HUD (See Plaintiffs' exhibit 2 at cover page; Plaintiffs' exhibit 3 at cover page.)
The City of Dallas began to receive CDBG funds in 1975. The City, at the same time, began a comprehensive housing and neighborhood strategy planning process. The City's planning process used the same neighborhood dynamics theories, concepts, and categories expressed in the HUD/RERC study. The process culminated in the City's 1978 Housing Plan.
The City's director of the Department of Housing and Urban Rehabilitation helped lead a local committee which accepted the same equivalence of minority residents and a substandard neighborhood found in the RERC study. The study was the May 1975 "How to Measure Neighborhood Decline" study published by the Center for Urban and Environmental Studies, Southern Methodist University. (See Plaintiffs' exhibit 1.) The study was conducted by a steering committee made up of HUD, state and local housing officials, private developers, and other housing related persons. The purpose of the study was to formulate specific indicators of neighborhood decline that could be used for City planning and policy implementation purposes. One of the indicators of potential neighborhood decline identified by the study was "High ratio of minority ethnic and racial population." (Plaintiffs' exhibit 1 at 33.) This indicator was overtly converted to a proxy measure, "Number of persons receiving public assistance." (Plaintiffs' exhibit 1 Table I.)
The same racial assumption that a high percent of black or other minority residents was a sign of neighborhood decline into a substandard condition became a basis for the City's 1978 Housing Plan for the City of Dallas. The other racial premises were explicitly incorporated into the framework for the Housing Plan.
The 1978 Housing Plan was based on the 1977 "Proposed Housing Plan" prepared by the Urban Land Institute, a consultant named Marshall Kaplan, and an inter-departmental City staff team headed by the same Richard H. Wilson who represented the City in the SMU neighborhood decline study. (See Plaintiffs' exhibit 4.) The Proposed Plan explicitly identified minority racial status as a sign of emerging neighborhood instability. Neighborhoods are identified as "likely candidates for future problems" because of "their location near or contiguous to areas of concentrated and/or pent up minority demand." (Plaintiffs' exhibit 4 at 168.) The proposal also stated, "The problem is not legitimacy of the minority demand, but what occurs when it is able to express itself because of circumstance (income, discrimination, etc.) only in contiguous areas. Rapid increase in minority residence usually occurs when an area is already not favored by many white residents and has already illustrated signs of obsolescence as well as deterioration. Rapid change generates difficulties with respect to maintenance of values, financing, etc." (Plaintiffs' exhibit 4 at 168 n. 1.)
The proposed plan identified the increasing minority percentage of the City's population as a problem to be addressed by the Housing Plan. (See Plaintiffs' exhibit 4 at viii.) The plan cautioned that increasing minority demand for home ownership units, given stable white demand, would create market pressures which, if not responded to, would lead to the conversion of neighborhoods to all minority neighborhoods. (See Plaintiffs' exhibit 4 at iv, 72.)
The proposed plan identified the City's share of the region's minority persons as a problem which prevented the retention of middle class persons and the revitalization of neighborhoods. (See Plaintiffs' exhibit 4 at ix.)
The proposed plan used neighborhood revitalization to retain existing and attract new moderate/middle income, white families. (See Plaintiffs' exhibit 4 at 169.) Filtering down, rather than revitalization, would be used to provide housing for minorities and low income persons.
The proposed plan, as part of its purpose to retain white, middle class persons, proposed a strict limit on the City's efforts to assist housing for minorities and low income persons. (See Plaintiffs' exhibit 4 at 177.) The plan proposed reducing minority pressure on white neighborhoods by "`in place' rehabilitation efforts and the opening up of housing opportunities throughout the area." (See Plaintiffs' exhibit 4 at 177 n. 1.)
The Housing Plan adopted by the City Council was based on the race conscious elements of the proposed Housing Plan and implemented the proposed emphasis on limiting housing for poor persons and seeking to attract and retain the middle class. (See Plaintiffs' exhibit 6 1978 council resolution.) The Plan did not include any element that would have increased housing opportunities for African-American households, but did institute a ban on the City's acceptance of more than its definition of its fair share of low income persons and housing for those persons. The Housing Plan was made an explicit part of the City's HUD required, CDBG Housing Assistance Plan. (See Plaintiffs' exhibit 7 at 3-6.)
At the same time the City was doing its race-based housing planning, it was also beginning its use of code-enforcement demolition of single family houses on a large scale. Because the demolition was funded by HUD CDBG funds, the City did an Environmental Impact Study ("EIS") of its demolition plans. The 1977 EIS was based on a study and recommendations done by RERC. (See Plaintiffs' exhibit 5.) RERC is the same group that did the "Dynamics of Neighborhood Change" racial neighborhood classification scheme for HUD. (See Plaintiffs' exhibit 2.) The EIS makes it clear that the predominantly black neighborhoods of the City are the ones to be targeted for federally funded code enforcement demolition.
The "Low Income" part of the demolition target area was 92.2% black and included 17.7% of the City's black population. The "Moderate Income" part of the demolition target area was 59.9% black and included 63.8% of the City's black population. The combined "Low and Moderate" income areas targeted for the City's future demolition activity were 64.7% black and included 81.5% of the City's black population. At the time, the City was 24.9% black. (See Plaintiffs' exhibit 5 at 045.) The target areas are the same predominantly black areas in which the City continues to use the code enforcement process to demolish a disproportionate number of repairable single family homes.
The City's plan was to minimize or diminish the demolition rate in non-black communities such as East Dallas (See Plaintiffs' exhibit 5 at 114, 150) and Oak Lawn (See Plaintiffs' exhibit 5 at 88, 132). The City intended to increase the rate of demolitions in the predominantly black communities of West Dallas (See Plaintiffs' exhibit 5 at 78, 126), Trinity (See Plaintiffs' exhibit 5 at 98, 138), Lisbon (See Plaintiffs' exhibit 5 at 103, 142), and South Dallas (See Plaintiffs' exhibit 5 at 108, 144). For example, the City intended to demolish 1,476 single family units in South Dallas from 1976 to 1980. (See Plaintiffs' exhibit 5 at 144-145.)
The EIS noted that one of the impacts of the demolition in the adjoining communities could be to cause the lower income households, forced to relocate, to move to the Lakewood community by taking advantage of any less expensive, because less well maintained, rental housing. The Lakewood community was defined as "predominantly white" and "viable." The EIS suggested future public intervention to prevent the decline in housing stock. (See Plaintiffs' exhibit 5 at 117, 121.)
The City's CDBG funded demolition activity was found by HUD to have resulted in the demolition of repairable housing in 1989, 1990, and 1991. (See Plaintiffs' exhibit 9.) HUD required the City to produce replacement units. (See Plaintiffs' exhibit 10.) The City continued to use HUD CDBG funds for code enforcement through 1997. (See Plaintiffs' exhibit 16.)
The City continues to classify predominantly African-American neighborhoods as inherently unstable and not worthy of protection from decline. The most recent expression of this classification is in the 1993 "City of Dallas Comprehensive Neighborhood Revitalization Strategies." (Plaintiffs' exhibit 11.) There are five classifications for each City neighborhood. Types 1 and 2 are "healthy/stable/self sustaining neighborhoods." Neighborhood type 3 is "healthy/endangered declining neighborhoods with pockets of blight." Type 4 is "advanced decline" and type 5 is "advanced decline and abandonment." (See Plaintiffs' exhibit 11 at 5-9.) Neighborhoods classified 1 and 2 receive flexible planning and focused services to prevent "community degradation." The resources applied to these areas include the Capital Improvement Budget, bond programs, and the General Fund Budget. Classification 3 neighborhoods receive neighborhood revitalization programs. These programs are designed to provide comprehensive neighborhood revitalization to prevent pockets of blight" from endangering healthy neighborhoods. The resources applied are CDBG, HOME, other federal funds, and the General Fund Budget. The remaining neighborhoods, those classified 4 and 5 with the exception of those protected by the Walker consent decree, are designated as "Neighborhood Redevelopment Areas." These neighborhoods are to receive City acquisition of slum and blighted areas, demolition and removal of buildings and improvements, and development of the resulting vacant land for "predominantly residential uses to activate sound community growth." The resources for these programs are listed as "to be determined."
The characteristics used to rank each neighborhood include a wide range of demographic characteristics. There are some obvious factors used such as percent owner occupied and median household income. The use of these characteristics alone would produce a racially skewed distribution of predominantly white areas in the healthy/stable/self sustaining neighborhoods classified as types 1 and 2. In 1994, black occupied unit median income was $20,811, only 70% of the Dallas median income. While the City's homeowner rate was 43% of all occupied units, just 35% of black occupied units were owner occupied. (See Plaintiffs' exhibit 27; HUD/U.S. Census American Housing Survey, Dallas, TX 1994 tables.)
The City's scheme adds an additional demographic characteristic, which is even more discriminatory and much less obvious as an indicator of neighborhood viability. The City scheme also includes "Large percentage of female headed households with no spouse present" as an indicator of neighborhood quality and a determinant of the level and type of municipal services to be provided. Fifty two percent (52%) of all black occupied units in the City of Dallas are female headed households. Only 35% of all occupied units in the City are female headed households and only 30% of the non-black occupied units in the City are female headed households. (See Plaintiffs' exhibit 27.) This explicit gender classification is also racially discriminatory. The female headed household criterion was also used in the explicit race based neighborhood classification scheme developed by HUD and City officials in 1975. (See Plaintiffs' exhibit 1 at 33.)
The discriminatory effect of this scheme is shown by the racial demographics of the census tracts classified in the document. (See Plaintiffs' exhibit 11 at 21-24.) There are no type 1 neighborhoods listed. There are 20 type 2, "healthy/stable/self sustaining," neighborhoods. Only two are more than 50% black, while 7 are more than 50% white. There are 20 type 3, "healthy/endangered declining neighborhoods with pockets of blight," neighborhoods. There are no majority white endangered declining neighborhoods. There are 11 majority black neighborhoods and nine majority Hispanic neighborhoods. There are 19 type 4 and 5, advanced decline" and "advanced decline and abandonment," neighborhoods. There are no majority white advanced decline or abandoned neighborhoods. The highest percentage white of any such area is census tract 16, 20.43% non-Hispanic white. There are 13 majority black advanced decline or abandoned neighborhoods and 3 such majority Hispanic neighborhoods. (See Plaintiffs' exhibit 28.) The City's classification scheme continues the identification of the presence of racial minorities with the appellation of a declining neighborhood used in the earlier overtly race conscious classifications.
The City continues to implement other aspects of the race based municipal services and housing plan developed during the 1970s. In 1995, the City lobbied against a HUD regulation that would have required the federal secondary mortgage market corporations, FANNIE MAE and FREDDIE MAC, to direct more resources to home ownership in the low and moderate income areas of the central City. One reason for the City's opposition was that "[e]ven though we support any initiative to assist our low and moderate income census tracts, Dallas, as with many other central cities, is fighting a desperate battle to both retain middle-income residents and bring back more middle-income residents to the central City. As proposed by HUD, this regulation would effectively remove a powerful tool to keep and recruit these residents." (Plaintiffs' exhibit 14.) This is the same concern expressed in the explicitly race conscious 1977 City housing planning. (See Plaintiffs' exhibit 4 at 169, 177.)
HUD continues to approve the City's use of racial classifications to determine the treatment of a neighborhood. A fair housing complaint, alleging that the City of Dallas code enforcement and demolition process was racially discriminatory against blacks, was filed with HUD in 1994. The complaint was amended in 1996 to add the Dallas Branch NAACP as a complainant. HUD dismissed the complaint in 1997 on the grounds that reasonable cause did not exist to believe that a discriminatory housing practice had occurred. The HUD dismissal of the complaint was based, in part, on the following City defenses and HUD fact findings:
"The City claimed that a consent decree in the Walker case restricts the City in providing low income housing in minority concentrated neighbors (sic)." (Plaintiffs' exhibit 12 "Determination of No Reasonable Cause" at 2.)
"The investigation revealed that from January 1, 1993 to December 31, 1994, the City of Dallas demolished 958 structures using City Forces. This number does not include structures that were demolished by the owners. Of this number, 710 or 74% were located in census tracts where over 50% of the residents were Black; 162 or 17% were located in census tracts where over 50% of the residents were Hispanic; 73 or 8% were located in census tracts where over 50% of the residents were White; and 13 were located in census tracts where none of the races represented over 50% of the population." (Plaintiffs' exhibit 12 "Determination of No Reasonable Cause" at 2-3.)
"The investigation revealed that the Consent Decree in the Debra Walker, et al. v. The U.S. Department of Housing and Urban Development, et al. states that the City shall provide additional standard housing and the units shall be located in non-minority concentrated areas of the City." (Plaintiffs' exhibit 12 "Determination of No Reasonable Cause" at 3.) This same unwillingness to create additional housing in minority areas was part of the 1970s City planning effort to stem the increase of black residents and to attract more white residents. (See Plaintiffs' exhibit 4 at 169, 177.)
Of course, the Walker consent decree does not condone the conduct of restricting the creation of housing or causing the demolition of housing in areas classified as "minority." That decree does require the creation of housing in white areas, but it also requires the creation of approximately 1,600 additional low-income units in minority concentrated areas.
In addition, the City shall administer federally funded programs directed toward providing additional standard low income housing in minority concentrated areas of the City for persons eligible for low rent public housing, on terms substantially equivalent to the terms on which public housing is available. Such programs currently include the Revolving Loan Fund, the Dallas Apartment Repair Program, and the Rental Rehabilitation Program. It is anticipated that such programs will provide approximately 1600 such housing units.
(Plaintiffs' exhibit 13 at 6.)
The City's unwillingness to create additional units in minority classified areas as a remedy for disproportionate demolition in those areas cannot be justified by the Walker decree. HUD's ratification of the City's unwillingness to remedy disproportionate demolitions by creating additional units in minority classified areas cannot be justified by the Walker decree.
The results of the City's single family demolition program also support (b)(2) class certification on the basis that the City has acted on grounds generally applicable to the class, race.
Plaintiffs introduced the results of their analysis of the URSB single family cases, which were given "FINAL" status by the City during the period 1992 — 1996. The key subject of the analysis was the fate of the cases in which the house was repairable as used in the class definition.
The results show a significant disparity in the treatment given to repairable single family homes between property located in predominantly black census tracts and property located in predominantly white tracts. The demolition rate for repairable single family homes in 90% plus black census tracts is 50.6%, over three times the rate for similar homes in 90% plus white areas, 14.9%. Thirty one percent of the repairable single family homes in 90% plus black tracts were demolished without adequate notice. Only 6% of such homes were demolished without adequate notice in 90% plus white areas. (See Plaintiffs' exhibit 17.) These and the other statistics presented by plaintiffs support the finding that the City has acted on grounds generally applicable to the class members, their race. (See Plaintiffs' exhibits 17-24.)
The Defendants attack Plaintiffs' definition of "repairable." The term "repairable" in the definition of the classes and in Plaintiffs' numerical analysis means a single family house that meets at least one of the following criteria:
a) the estimated or actual costs of repairs was equal to or less than the property tax assessed value of the structure or equal to or less than actual market value,
b) there is no certification in the URSB file that the structure is non-repairable,
c) the City code enforcement URSB referral recommends that the URSB order repairs,
d) the URSB staff recommendation to the URSB is that the URSB order repairs, or
e) the URSB ordered repairs to the structure.
Plaintiffs' definition is objective, easily determined from the City's own documents in each case, and uses the City staff or URSB's own recommendations or determinations as the usual basis for a "repairable" determination. Plaintiffs' definition of "repairable" may be more favorable to the City than the application of the official City policy for the use of demolition, That policy was adopted in 1991 in City Council resolution 911339. (See Plaintiffs' exhibit 8.) One purpose of the policy was to ensure that City housing programs "are applied in a just and fair manner. . . ." (Plaintiffs' exhibit 8 at 9.) The policy limits the use of demolition to cases "when all other compliance tools, such as housing assistance programs, Chapter 54, In Rem and receivership are exhausted and when properties create an urban nuisance and meet one of the following conditions (unless there is donated support for repair): a) more than 50 percent burned or b) has major structural decay of several components that affect the integrity of the building (foundation, roof, complete rewiring, total replacement of plumbing)." (Plaintiffs' exhibit 8 at 10.) If Plaintiffs' evidence is correct, the City has demolished many structures which do not meet these criteria.
Plaintiffs' definition is similar to the definition used by HUD earlier this decade when it required the City to replace repairable housing units demolished in violation of HUD's CDBG standards. HUD's regulation required the replacement of all demolished units that were suitable for rehabilitation. That determination was also to be based on the City's own inspections and conclusions about repairability. (See Plaintiffs' exhibit 9 at 3.)
Plaintiffs' definition of repairability is adequate for purposes of class certification. It eliminates properties that were clearly suitable for demolition from the case. Their definition uses the City's own determinations as the basis for the repairable or not classification, It provides a clear line between those in the class and those excluded.
2. FRCP 23(a) Requirements
a. Numerosity
Plaintiffs presented evidence showing that 580 repairable single family homes were demolished without adequate notice. (See Plaintiffs' exhibits 17, 18, 25.) Each of these homes was also seized and demolished without a warrant or other judicial process. The numerosity requirement is satisfied for the process class.
Plaintiffs presented evidence showing that 764 repairable single family homes in predominantly black census tracts were demolished and became "Final" URSB cases during the years 1992 — 1996. (See Plaintiffs' exhibits 17-18, 26.) Some of the homes were owned by individuals or institutions that will probably not meet the class definition, e.g. the City of Dallas, banks and large scale landlords. (See Plaintiffs' exhibit 26.) However, the exclusion of these property owners from the class does not defeat the showing of numerosity for the race discrimination class.
b. Commonality
The questions of law and fact discussed above under the 23(b)(2) issue are questions of law and fact common to each member of the proposed classes.
c. Typicality
Each of the named plaintiffs was denied notice of one or more important procedural stages of the URSB case involving their property. Both of their single family homes met the criteria for repairability. (See Plaintiffs' exhibits 29, 30.) Ms. James was not given notice of any of the proceedings. The City mailed her notices to an apparently non-existent address. (See Plaintiffs' exhibit 29.) Ms. Lary was present at the URSB hearing and received notice of the URSB order to repair her property or demolish it. Although, Ms. Lary repaired her property, the City declared her in default of the repair order and ordered demolition. The notice of default which would have given her the opportunity to show that she had in fact made the repairs was sent to the wrong address even though the City had the correct address in its possession. (See Plaintiffs' exhibit 30.) The City did not obtain a warrant or other judicial process before seizing and demolishing the named Plaintiffs' repairable single family homes. Ms. James and Ms. Lary are African-American and the demolished homes were located in predominantly black census tracts. (See Plaintiffs' exhibits 29, 30.)
d. Adequacy of representation
There is no conflict of interest between plaintiffs and the proposed classes. In order to recover on their claims, the plaintiffs must prove the same facts as are necessary for the class recovery. Although plaintiffs are also seeking individual damages as an alternative remedy, this does not disqualify them from class representation. See Stewart v. Winter, 669 F.2d 328, 334-335 (5th Cir. 1982). The plaintiffs are also seeking the alternative relief for the class members. (See Plaintiffs' Second Amended Complaint at 13.)
B. Limits of Opinion
The findings of fact contained within this opinion are limited to class certification. Indeed, liability remains an issue for the ultimate fact finder at trial.
This should alleviate the concerns of HUD and the City.
C. Conclusion
For the reasons stated in this Opinion, Plaintiffs' motion for class certification was GRANTED and the Court certified two classes, as defined above. Plaintiffs' attorneys shall submit a class certification order pursuant to this opinion.It is so ORDERED.