Ed Arrington v. The City of Fairfield, Alabama

COLEMAN, Circuit Judge

(dissenting):

This case, in my opinion, does not present a federal question. With deference to the views of my highly respected Colleagues, the effect of their decision is to convert the federal courts into local drainage ditch supervisors.

The truth of the controversy is plain and unmistakable. I seek no justification for straining over whether the District Judge did or did not, should or should not have, acted under Rule 12(b) or Rule 56, F.R.Civ.P. This is of no real significance, for the dismissal was eminently correct in any event.

The Court heard testimony of witnesses, but this was at the request of the plaintiffs, evidently as a substitute for counter-affidavits. Even so, this proof gave the plaintiffs no comfort and it produced no factual dispute. In his order dismissing the suit Judge Allgood wrote: “There is no conflict in the evidence presented to the Court and no general issue of material fact. Upon the pleadings now before the Court, together with the affidavits, exhibits, and testimony of the witnesses there is no cause of action * * * nor from the facts presented could the plaintiffs set forth a claim upon which relief may be granted”.

In my opinion, he was right either way and both ways. A remand will not develop any additional material facts.

If we assume that plaintiffs had standing to sue and that all named defendants were proper parties, the result should be the same. I would therefore attach no importance, to these procedural niceties but would dispose of this case as law and justice require, § 2106, Title 28 U.S.C.A. To fail to do so is to inflict serious damage upon parties against whom no federal cause of action is, or could be, shown.

Although the improvements visualized for this slum area were to be done by private individuals, using no public funds, with no exercise of eminent domain, the majority of the panel thinks a case is or might be presented. Yet, they decline to decide the only real issue raised by the plaintiff — a fervid contention, both below and on appeal, that even as between private parties the regulations and policies of the United States Department of Housing and Urban Development with reference to persons displaced by publicly sponsored urban renewal are the minimum standards for the determination of Thirteenth and Fourteenth Amendment rights in the area of “race and housing” (emphasis mine). It is secondarily argued that in any event the removal of plaintiffs at the termination of their lawful right to occupy the property would violate the same rights.

I, too, would not decide these issues in this case — but for a different reason. The facts, viewed in the light most favorable to the plaintiffs simply do not present a substantial federal question.

tj?or nearly two years, in the midst of wildly escalating construction costs and interest rates, these plaintiff-appellants have blocked the proposed construction of a Holiday Inn on new Interstate Highway 59 in the northeast corner of Fair-field, Alabama, immediately adjacent to the common boundary between Fairfield and Birmingham. Yet, the undisputed fact is that on August 9, 1968 sixty-five to seventy per cent of the buildings in the area involved were vacant and there were not “two buildings in the area fit for human occupancy”. In their brief the plaintiff-appellants refer to the area as “a slum by any common definition of the term”. Plaintiffs agree that “90% of the buildings are structurally defective and do not meet the health standards of the City of Fairfield and the buildings are subject to being condemned for health reasons”. The streets are not paved. Community facilities are lacking, and a drainage ditch runs through the entire area. The majority of the residents are tenants and 94% of them are of the black race. In 1964, due to the proposed construction of a new Interstate *695 Highway the City rezoned the area from residential to residential-commercial. So far as the record shows this action was not then attacked, administratively or judicially.

In June, 1967, the Fairfield Housing Authority initiated an urban renewal project in the Englewood area of the City of Fairfield. The affidavit of the Assistant Administrator for Renewal Assistance, Region III, United States Department of Housing and Urban Development (HUD), shows that in the entire area (considerably larger than that involved in this suit) the project would have involved 137 residential structures, of which 87% were classified as substandard. This federal official deposed that it was a slum area and would qualify for federal urban renewal assistance. The Housing Authority for Fairfield, Alabama, was never able to obtain approval for this urban renewal project. From letters received and conferences held it was plainly apparent by midsummer of 1967 that there was not going to be any project. The project was dead, but it was not formally “pronounced dead” until the Assistant Administrator put it in a letter dated February 8, 1968. In his deposition, the Assistant Administrator of HUD stated,

“I therefore concluded that adequate relocation resources were not available to relocate all families and individuals living in the project area and that neither the City nor the Housing Authority planned to build replacement housing in the City of Fairfield for Negroes displaced by the proposed Englewood Urban Renewal Project. My office therefore concluded that the Department of Housing and Urban Development could not continue to process the application of the Fairfield, Alabama Housing Authority and it was returned to the Housing Authority under cover of my letter of February 8, 1968”.

The cover letter, attached as Exhibit A to the deposition, stated, “Although a sincere effort has been made by all concerned and several alternatives have been considered, the basic problems still exist”. HUD delivered the coup de grace on February 8 but this suit was not filed until October 2. It is thus demonstrated beyond cavil that the urban renewal project had expired, never to rise again, eight months before this suit was brought. The urban renewal project had no relevance to the merits of this case. It was undoubtedly a closed chapter when private parties decided to see what they could do with private funds toward clearing and improving a part of the area formerly included in the dead project.

When it became generally known that the requirements of HUD could not be met and that the urban renewal project was doomed, Engel Realty Company, a private enterprise, decided to try to do something about it. It developed a plan by which it hoped with non-public funds to acquire and develop the area by voluntary purchases from the owners. This, of course, would have been subject to the rights of tenants to remain until the end of their respective terms of occupancy, unless Engel should also acquire those rights by private bargaining. Engel was acting in its own right and not as agent of any defendant in this case. Neither had Engel been involved in the ill-fated urban renewal project. No public money would be employed. ~ Eminent domain could not be invoked.

Except for one detail the plan was totally disassociated from any public authority of any kind. Engel Realty thought that the best possible chance for acquiring the property and developing it at no loss to those assuming the risk would be to build a motel on it. A motel was out of the question unless the previously mentioned open drainage ditch could be covered. The cost of this was so high that Engel went to the City of Fair-field and on December 4, 1967, obtained the written agreement of the authorities that if a motel could be built the City would cover the drainage ditch, hoping that tax revenues from the new construction would amortize the expense.

The agreement of the City of Fairfield to do that which it clearly had the au *696 thority to do (regardless of whether a motel was or was not built) furnished the starved shadow of the federal question which is sought to be raised in this case.

The owners of the property in Fair-field are under no compulsion to sell their property. They cannot be placed under compulsion. The tenants will not have to leave until their terms expire. This they could be required to do regardless of whether a motel is built. They are living in buildings not fit for human habitation, subject to condemnation. Yet, the federal courts are now being used to perpetuate this impossible situation. Still worse, they are being used to circumvent an economically feasible revitalization of the blighted area.

With deference to my Colleagues, I must say that this case offers the slimmest support I have ever seen for federal intervention in a purely local matter (at the Board of Aldermen level).

Putting this cover on an open drainage ditch is a municipal function and a progressive step in any heavily populated area, regardless of its racial composition. Covering this drainage ditch cannot possibly have any compulsive effect on anybody. It will not force any owner to sell his property to anybody. It will not control the price which he may demand and collect, if he wishes to sell at all. It will not shorten the term for which any tenant has contracted. It will lead to progress, to new buildings, and to new economic opportunities — a legitimate object anywhere. Before today I had not thought that where no public funds or public compulsion is involved the Constitution requires that a tenant, even if of a minority race, may at his option remain on rented premises beyond the expiration of his term and may enforce that option in the federal courts.

If a case is to require decision as having raised a substantial federal question the Constitution of the United States, a treaty, or a federal statute must somewhere be applicable or at least in issue. This case cannot square with that standard. Voluntary purchases and sales of private property between willing sellers and willing buyers, when no federally guaranteed privilege or immunity is denied, and when neither party has any thought of attempting to compel a citizen to do something he has a right to refuse to do, are not prohibited or inhibited by the Constitution or laws of the United States. “Sifting facts and weighing circumstances” of the actions and relationships here involved, Burton v. Wilmington Parking Authority, 365 U.S. 715, 722 , 81 S.Ct. 856 , 6 L.Ed.2d 45 (1961) there is no discriminatory state action in this case.

So, in addition to what I said in the beginning about becoming local drainage ditch supervisors, this decision has another far-reaching potential: If a racial argument can be thought of, and that is not hard to do, the federal courts are now set to intervene in any quarrel arising out of private slum clearance and rehabilitation, right down to the least detail.

The Judgment of the District Court ought to be affirmed, so I respectfully dissent.