The opinion of the court was delivered by: LASKER
This motion raises important questions regarding both the extent to which the federal courts may intervene in government relocation of persons being displaced by urban renewal programs and the degree to which government must demonstrate a readiness to proceed with the development of its project before undertaking the enforced displacement of project area residents and the clearance of otherwise habitable dwellings.
Plaintiffs, artist-tenants of 360 Greenwich Street and 179 West Street in New York City, have moved for a preliminary injunction to enjoin the defendants from proceeding, in connection with the Washington Street Urban Renewal Project ("the project"), with the demolition of these premises and their eviction therefrom. Defendant City of New York has counter-moved to dismiss the complaint for failure to state a claim upon which relief can be granted or, in the alternative, for summary judgment.
Plaintiffs base their action on defendants' alleged violations of the policy and provisions of the Housing Act of 1949, as amended, 42 U.S.C. § 1441 et seq., and the regulations promulgated thereunder. They invoke the jurisdiction of this court pursuant to 28 U.S.C. § 1331, which provides for federal court jurisdiction of all civil actions arising under federal law wherein the matter in controversy exceeds $10,000; 28 U.S.C. § 1361, which provides for federal court jurisdiction of mandamus actions to compel an officer, employee, or agency of the United States to perform a duty owed to the plaintiff; and 28 U.S.C. §§ 2201, 2202, which provide for declaratory judgment and other necessary relief. That this court has subject matter jurisdiction herein is not, and indeed cannot be, contested. See Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920, 926, at n. 6 (2d Cir. 1968).
Plaintiffs Talbot and DiGiorgio, a writer and a painter respectively, have been residents of 360 Greenwich Street for the past nine years. Talbot presently occupies a five-room apartment there, one room of which she uses as an office, at a monthly rental of $21. As for DiGiorgio, he now occupies a five-room apartment as living space at $23 per month and a four-room studio, in which he works as a painter of large abstract canvasses, at $32 per month. Plaintiff Kachian, a sculptor, is the sole tenant of 179 West Street. He formerly occupied part of the second floor for residential use at a rental of $75 per month, and part of the fourth floor, approximately 3400 square feet, as his studio, also at a monthly rental of $75. These two spaces were later consolidated and his total rent reduced to $75 per month. This loft building has, in addition to the normal single phase wiring, a three phase power line which plaintiff Kachian needs for some of his carpentry work.
Plaintiff Delores Jackson, a mother of two infant children presently residing with an aunt at 159-26 Harlem River Drive, New York, New York, is described in the complaint as having been without a residence since February 24, 1970 when the New York City Department of Social Services terminated her welfare assistance. Since that time she has allegedly been unable to find adequate housing in New York City for herself and family despite diligent search.
These four plaintiffs have brought this action for temporary and permanent injunctive relief against George Romney, Secretary of the United States Department of Housing and Urban Development ("HUD"); S. William Green, Regional Administrator of the United States Department of Housing and Urban Development; Albert Walsh, Administrator of the New York City Housing and Development Administration ("HDA"), the local public agency ("LPA") authorized to undertake urban renewal programs on behalf of New York City; and the City of New York.
Charging defendants with allegedly inadequate relocation efforts under the mandate of the federal housing statute, plaintiffs request that the defendants be preliminarily and permanently enjoined from proceeding with the demolition of the premises at 360 Greenwich Street and 179 West Street, or the eviction of plaintiffs Talbot, DiGiorgio and Kachian therefrom, until such time as defendants have undertaken appropriate and lawful steps for relocating plaintiffs, and until such time as projects planned for the renewal site have been authorized by all appropriate governmental bodies and sponsors for such projects have demonstrated their readiness, ability and willingness to proceed forthwith to construct on the renewal site. The complaint also asks for a permanent injunction requiring defendants to house plaintiff Jackson in one of the unoccupied apartments in 360 Greenwich Street, at a reasonable rental, until such time as the other tenants therein are lawfully removed.
The history of the instant renewal project is not in dispute. Section 101(c) of the Act, 42 U.S.C. § 1451(c), provides that as a prerequisite to obtaining any federal financial assistance in the development of a community (as opposed to a particular project within that community) a local agency must present for certification by the Secretary of HUD a "workable program for community improvement." Pursuant thereto, such a program was submitted by New York City and approved by HUD in July 1959. (The program was recertified in April 1963 and in May 1964.) On November 7, 1960, the federal government, through the Housing and Home Finance Administrator (presently the Secretary of HUD), and the City of New York entered into a Survey and Planning Contract providing the City with an advance of federal funds for the purpose of formulating an urban renewal plan. On January 25, 1962, the Board of Estimate of the City of New York adopted by resolution a project known as the Washington Street Urban Renewal Project. Subsequently, the City submitted an application for a Capital Grant which contained, in accordance with the Act, the urban renewal plan itself, as well as a plan for the relocation of persons to be displaced from the urban renewal area. HUD reviewed the application and, on or about March 12, 1963, found it to be acceptable. The Mayor of the City of New York gave his approval to the project on January 26, 1965, and on February 1, 1965, the City entered into a Capital Grant Contract with HUD providing funds for the actual construction and development of the project. Title to all of the land within the project, bounded generally by Hubert Street, Greenwich Street, Barclay Street and West Street, passed to the City on March 1, 1965, by order of the New York State Supreme Court. On January 30, 1969, the City moved the State Supreme Court to put it into possession of the premises located within the project, including 360 Greenwich Street and 179 West Street. This motion was granted by order dated February 28, 1969, with execution stayed until September 1, 1969. On April 9, 1969, the City, with HUD's approval, signed a contract with Nationwide Wreckers, Inc. for the demolition of 47 Structures located within the Washington Street urban renewal area, including those at 360 Greenwich Street and 179 West Street. On September 25, 1969, a meeting was held at 204 Franklin Street with the remaining site tenants, among whom were plaintiffs Talbot and Kachian, at which time they were notified that the final writ date of September 1, 1969 had passed and that the process of clearing the area would shortly commence. Between March and April, 1970, plaintiffs Talbot, DiGiorgio and Kachian were notified either personally or in writing of the impending execution of the writs of assistance, and on June 8, 1970, plaintiffs received written notice that their eviction by Harry Weisberg, Senior Deputy Sheriff, City of New York, was scheduled for June 10, 1970.
Thereafter, on June 9, 1970, plaintiffs obtained a temporary restraining order, which remains in effect pending the outcome of the instant motion, staying all proceedings on behalf of the defendants or any sheriff of New York City to evict plaintiffs or demolish the premises at 360 Greenwich Street and 179 West Street.
Relying upon the complaint as well as affidavits in support of and in opposition to the motions for preliminary relief and summary judgment, plaintiffs contend that it is an arbitrary abuse of administrative discretion for defendants Romney and Green to fund the Washington Street Urban Renewal Project in that (1) the City's original relocation feasibility plan, its subsequent relocation reports, and the actual relocation efforts made by the City on behalf of the named plaintiffs have not met the requirements of Section 105(c) of the Act, 42 U.S.C. § 1455(c), and HUD regulations adopted pursuant thereto; (2) the City has failed to offer a "workable program" within the meaning of 42 U.S.C. § 1451(c) inasmuch as construction plans for the renewal site are, and have been for the past ten years, still in a preliminary stage; and (3) given the absence of any plan for timely construction on the project site, the proposed immediate demolition of habitable dwellings at a time of severe housing shortage in the City of New York constitutes a violation of the declared policy of the Act that every American family should be decently housed. 42 U.S.C. § 1441.
Defendants oppose the application for preliminary injunction, and defendant City of New York also moves to dismiss the suit, upon the grounds that plaintiffs lack legal standing to maintain this suit, that plaintiffs' objections are based on too literal an interpretation of the requirements of the Act, and that defendants have in fact met the requirements imposed on them by the relocation law.
Two procedural matters must be disposed of at the outset. First, inasmuch as matters outside of plaintiffs' pleadings have been presented to and not excluded by the court, the motion to dismiss by defendant City of New York will be treated as one for summary judgment as prescribed by Rule 12(b) of the Federal Rules of Civil Procedure.
Secondly, defendant City's contention that plaintiffs have no standing to raise the issues presented herein must be summarily rejected. Plaintiffs do not challenge the propriety or legality of the project itself, or the condemnation of the land in the project site. They merely raise a statutory claim of inadequate relocation under the Act and challenge HUD's continued funding of the project in the absence of compliance with the mandates of the federal statute.
That displaced residents have standing to sue to obtain judicial review for the protection of interests specifically recognized in the Housing Act was decided beyond cavil by the Second Circuit in the leading case of Norwalk CORE v. Norwalk Redevelopment Agency, supra. There the court stated, 395 F.2d at 932-933:
"Since the section [42 U.S.C. § 1455(c)] requires provision for the relocation of displaced families, it can hardly be thought that displaced families such as plaintiffs, do not have the required personal stake in the outcome of litigation where a violation of the section is claimed. If anybody can raise this claim, it is these plaintiffs. The question we must answer is whether actions taken by HUD and local public agencies under section 105(c) are ever subject to judicial review.
"The proposition is now firmly established that 'judicial review of a final agency action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress.' (citations omitted). We have concluded that plaintiffs are aggrieved, and that there is no persuasive reason to believe that Congress intended to cut off judicial review."
See also Western Addition Community Organization v. Weaver, 294 F. Supp. 433 (N.D. Cal. 1968); Powelton Civic Home Owners Ass'n v. Department of Housing and Urban Development, 284 F. Supp. 809, 825 (E.D. Pa. 1968) ("We have concluded that the relocation provisions of 42 U.S.C. § 1455(c)(1) and (2), both in their substantive and in their procedural implications, are intended for the protection of these particular plaintiffs and do provide standing in this case.")
Accordingly, we may proceed to analyze plaintiffs' substantive claim that the City's relocation plans, relocation reports and relocation efforts have fallen short of the ...