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October 25, 1985


The opinion of the court was delivered by: GREENE

HAROLD H. GREENE, District Judge.

On October 9, 1980, the City of Pleasant Grove, a community in Jefferson County, Alabama, brought this action under section 5 of the Voting Rights Act of 1965, 42 U.S.C. ยง 1973c, seeking a declaration that the annexation by the city of the so-called "Western Addition" did not have the purpose or effect of denying or abridging the right to vote on account of race or color. In March 1982, plaintiff moved for summary judgment, *fn1" and on August 3, 1983, after a hearing, the Court denied plaintiff's motion. City of Pleasant Grove v. United States, 568 F. Supp. 1455 (D.D.C. 1983).

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

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

 The action is now before the Court on the merits and, as the plaintiff, the City of Pleasant Grove has the burden of proof. City of Rome v. United States, 446 U.S. 156, 162, 183-87, 64 L. Ed. 2d 119, 100 S. Ct. 1548 (1980); City of Richmond v. United States, 422 U.S. 358, 362, 45 L. Ed. 2d 245, 95 S. Ct. 2296 (1975); Georgia v. United States, 411 U.S. 526, 538, 36 L. Ed. 2d 472, 93 S. Ct. 1702 (1973); City of Port Arthur v. United States, 517 F. Supp. 987, 1010-11 (D.D.C. 1981), aff'd, 459 U.S. 159, 74 L. Ed. 2d 334, 103 S. Ct. 530 (1982); Mississippi v. United States, 490 F. Supp. 569, 581 (D.D.C. 1979), aff'd, 444 U.S. 1050, 100 S. Ct. 994, 62 L. Ed. 2d 739 (1980); City of Petersburg v. United States, 354 F. Supp. 1021, 1027 (D.D.C. 1972), aff'd, 410 U.S. 962, 35 L. Ed. 2d 698, 93 S. Ct. 1441 (1973).

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


 During its history, Pleasant Grove approved the following four annexation requests: a parcel of land to the southeast of the city (1945); land in the northern, southern, and western areas (1967); the Glasgow Addition (1971); and the Western Addition (1979). *fn2" None of these areas had any black residents. During the same period, the city rejected annexation petitions from the Woodward School (August, 1971), *fn3" the Pleasant Grove Highlands (April 18, 1979); and the Dolomite area (October, 1979). Each of these areas has been identified as a "black" area. *fn4"

 The annexations directly at issue in this proceeding are those of the Western Addition (Western), the Glasgow Addition (Glasgow), and the Pleasant Grove Highlands (Highlands). The basic rationale offered by Pleasant Grove in discharge of its burden of proof is that its decisions to annex the "white" Western *fn5" and Glasgow areas, but not the "black" Highlands, were based not on race but on the city's economic self-interest.

 In support of that rationale, Pleasant Grove adduced evidence *fn6" tending to show that, when the residents of the Highlands requested annexation (some two months after the annexation of Western), the mayor of Pleasant Grove appointed a committee to investigate. That committee, it is said, reported to the City Council that annexation would not be financially advantageous, and a second committee later likewise concluded that annexation would be economically costly to the city. *fn7" The principal substantive contentions Pleasant Grove is making in support of these conclusions are (1) that by annexing the Highlands, it would give up approximately $59,000 in development fees, *fn8" and (2) that the Highlands, unlike the "white" areas which had recently been annexed, requires more than its per capita share of City revenues, particularly in the form of police, fire, and sanitation services. We find, based on the evidence, that these contentions are without merit, and that they are a mere pretext for race-biased annexation decisions.


 First. Neither in connection with the Highlands' petition nor at any other time did Pleasant Grove conduct an economic study to determine the advantages and disadvantages of a particular annexation; all the economic conclusions reached in this regard were developed after the fact. The evidence clearly shows that the City did not assess the economic or other impacts of annexation prior to its decision not to annex the Highlands, *fn9" and that it likewise performed no such studies in connection with its decisions to annex the Western and the Glasgow areas.

 Second. Pleasant Grove's reliance upon the determination of its so-called "Annexation Committee" -- that annexation of the Highlands would be too costly -- is unpersuasive for other reasons as well. Although the City asserts that the committee was established in March, 1981 to consider economic impacts, committee members have testified that they were not notified of their appointments until one year later. *fn10" It is likewise established that, if the committee met at all, it did so only once and then only on an informal basis, and that it never gathered its own information, but what data it had were provided to it by the Mayor from various city department heads who had already prejudged the issue. *fn11" The committee never questioned these individuals regarding economic issues; it generated no documents; and it made no official report to the City Council. Based on these uncontroverted facts, it is difficult to escape the conclusion that reliance by the City on the committee's recommendation for its decision not to annex Pleasant Grove Highlands is a sham. *fn12"

 Third. Substantively, the economic justification presented to the Court for the City's failure to annex the Highlands is no more persuasive. *fn13" The factors that have been cited in that regard are fire protection, streets and sanitation, police protection, and revenues from development fees.

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

 B. Similar problems exist with respect to the City's findings concerning the respective costs of providing street and sanitation services to the Highlands as opposed to the Western Addition. Those responsible for calculating the costs of these services applied entirely different cost methods for the needs of the Highlands than they did for those of the Western Addition. If the same method of calculating costs are applied to both areas, the cost to the city would be, depending upon the formula used, either $20,000 for the Western Addition and zero for the Highlands, *fn14" or $81,900 for the Western Addition and $6,917.24 for the Highlands. *fn15" In short, under either method, the cost of providing street and sanitation services to Western far exceeds the cost of providing such services to the Highlands.

 C. On the issue of police protection, the City's high cost estimates for the Highlands were based primarily upon the view expressed by the police chief, that the black residents of the Highlands were more "crime prone." *fn16" Actually, to the extent that the statistics support that assessment at all, *fn17" they are explained by the fact that the Highlands was a "new" neighborhood still lacking cohesion. *fn18" In any event -- as is true with respect to the provision of fire and paramedic service -- the Pleasant Grove police department already responds to calls in the Highlands, and the annexation therefore should not generate any additional costs. *fn19"

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

 Pleasant Grove also estimated that the annexation of the Western Addition would generate anywhere from $768,250 to $1,424,500 in development fees over a four year period, *fn20" in the form of building permits, subcontractors' licenses, increased property taxes, and the like. These figures, however, are shown by the record to be highly inflated. For example, the City's estimated annual tax revenue for the new Western homes exceed those of the City's most expensive neighborhoods. Moreover, on economic grounds other than development fees, the annexation of the Western Addition appears to be more costly to the City than the annexation of the Highlands. *fn21"

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


 In addition to the evidence of the disparate approach Pleasant Grove took with respect to almost every phase of its economic analysis of the proposed annexations, there is ample evidence before the Court that the City adopted racially-discriminatory policies with respect to matters other than annexation. As a matter of law, the Court may, and it does, infer on the basis of this evidence as well that racial bias was the purpose of Pleasant Grove's annexation policy. *fn22"

 From the 1940s to the present, Pleasant Grove's housing and zoning policies have been designed to exclude blacks from the City. This was done either directly *fn23" or through its efforts to exclude apartment construction (in the belief that apartment housing was likely to be occupied by blacks). *fn24" Moreover, Pleasant Grove has managed to maintain an all-white residential community by operating a dual white-black housing market through a variety of devices, such as advertising and marketing directed exclusively to white buyers, and racial steering. *fn25"

 Pleasant Grove has likewise made clear its policy of hostility to the presence of blacks in subjects other than housing. The City has never hired a black person, preferring to draw its employees from as far away as fifty miles rather than to hire blacks living in surrounding Jefferson County, which is one-third black. When a federal court in 1969 required the County to abandon its segregated school system, *fn26" Pleasant Grove voted to secede from the county school system on the evening of the very day the court's order was issued. The City established its own separate "white" school system, financing it with extraordinary taxes, *fn27" and funds diverted from the municipal utility system. *fn28" These actions, and others, *fn29" demonstrate that the City of Pleasant Grove has attempted to exclude blacks from becoming residents of the City and all facets of City life, including voting in municipal elections, and that it has, in fact, succeeded in doing so. As the Rogers and Busbee cases, cited supra, hold, such actions are valid evidence of discriminatory purpose in a voting rights action.

 The mass of evidence of a specific racially-biased annexation policy, supported by what must be, for this day and age, an astonishing hostility to the presence and the rights of black Americans, far overshadows and outweighs the City's feeble effort to portray its annexation policy as economically motivated. We find that the economic rationale advanced by Pleasant Grove is pretextual, and that the city has wholly failed to carry its burden of establishing that its annexation policy does not have the purpose of denying or abriding the right to vote on account of race or color. *fn30"

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


 Upon consideration of the evidentiary materials submitted by the parties, the briefs, the arguments advanced at the hearing on June 25, 1984, and the entire record herein, it is this 25th day of October, 1985, in accordance with an Opinion issued contemporaneously herewith

 ORDERED that the Court denies plaintiff's request for a declaratory order that the annexations of (1) 40 acres of land inhabited by 14 members of the Glasgow family and known as the "Glasgow Addition" which was adopted by the City of Pleasant Grove on May 3, 1971 pursuant to Ordinance No. 161, and (2) 450 acres of uninhabited land known as the "Western Addition" which was approved by the Legislature of the State of Alabama by Act No. 79-419, and signed by the Governor on July 17, 1979, did not have the purpose of denying or abridging the right to vote of any person on account of race or color in violation of section 5 of the Voting Rights Act of 1965, and that plaintiff may enforce the aforesaid annexations; and it is

 DECLARED that such annexations had the purpose of denying or abridging the right to vote on account of race or color in violation of the Act; and it is further

 ORDERED that denial of plaintiff's request is without prejudice to a renewal of the request for preclearance in the event that the City of Pleasant Grove devises and implements a racially non-discriminatory annexation policy.

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