Warren v. Waterville Urban Renewal Authority

• Decision Date: 12 May 1965
• Citation: 210 A.2d 41,161 Me. 160
• Parties: Rose WARREN v. WATERVILLE URBAN RENEWAL AUTHORITY.
• Court: Maine Supreme Court

Page 41

210 A.2d 41

161 Me. 160

Rose WARREN v. WATERVILLE URBAN RENEWAL AUTHORITY.

Supreme Judicial Court of Maine.

May 12, 1965.

Jerome G. Daviau, Waterville, for plaintiff.

Richard J. Dubord, Lester T. Jolovitz, Waterville, for defendant.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, SULLIVAN and SIDDALL, JJ.

SULLIVAN, Justice.

Defendant is a body corporate and politic created in Waterville R.S.1954, c. 90-B where on November 26, 1963 the plaintiff was the owner of real estate which the defendant in the furtherance of an urban renewal project expropriated and appropriated by process of eminent domain. R.S.1954, c. 90-B, § 6. By her complaint in this case the plaintiff seeks to have the defendant enjoined from asserting title or exercising dominion over such real estate for imputed illegalities in the condemnation procedure, averred to be of voiding effect.

The complaint, defendant's answer, interrogatories and responses, a deposition, affidavits, exhibits, pre-trial memoranda and orders and plaintiff's motion for a summary judgment present this case by report to this Court for determination. The parties stipulate that no material facts are in dispute and that the only issues are of law.

To quote from the pre-trial record:

'* * * The primary issue of law for determination is whether or not the purported taking of plaintiff's property by eminent domain is lawful and valid and is legally sufficient to divest the plaintiff of her legal title * * *. They, (the parties), further agree that if the plaintiff prevails the Court may cause the defendant to be permanently enjoined from asserting title to plaintiff's property by reason of the purported taking by eminent domain on November 26, 1963; and that if the defendant prevails it may have judgment and the plaintiff may hereafter have her damages for the taking assessed in a separate proceeding now pending.'

All of the events procreative of the controversy in the case at bar occurred during a period of time when R.S.1954 c. 90-B was in controlling effect.

A municipality was privileged to create an urban renewal authority when and if its municipal officers adopted a resolution finding that:

'A. One or more slums or blighted areas exist in such municipality; and

'B. The rehabilitation, conservation, redevelopment, or a combination thereof, of such area or areas is necessary in the interest of public health, safety, morals or welfare of the residents of such municipality.'

Subsequent to any such resolution and finding the municipal officers were directed to submit to the voters at a regular or special election the question whether the municipality willed to authorize the establishment of an Urban Renewal Authority. R.S.1954, c. 90-B, § 1.

On November 3, 1959 six of the seven aldermen attended a programmed regular meeting of the municipal officers of the City of Waterville. The mayor and one alderman were absent.

The municipal officers of Waterville were the mayor and aldermen. R.S.1954, c. 10, § 22, subd. XXVI, c. 90-A, § 1, subd. II.

A majority of the municipal officers had authority to act with committal of that body. R.S.1954, c. 10, § 22, subd. III.

There were 8 'municipal officers' in Waterville. Such officers did not consist of a mayor counterpoised against, vis a vis 7 aldermen or vice versa, but constituted a composite body to act by a numerical majority. Were it otherwise a mayor by his absence or by his single vote might have vetoed or made unattainable any decision of the municipal officers.

'* * * The municipal officers, of whom the mayor is one * * *.' Howard v. Harrington, 114 Me. 443, 448, 96 A. 769, 771, L.R.A.1917A, 211.

At the meeting of November 3, 1959 an alderman was elected President

'* * * of this Regular Meeting in in the absence of the Mayor and Permanent Chairman.'

As Municipal Officers the 6 Aldermen in attendance adopted a resolution finding as follows:

'RESOLUTION

'It is hereby resolved by the Municipal Officers of the City of Waterville that:

'It is hereby found and declared that there exist in the City of Waterville one or more slum and blighted areas and the rehabitation, conservation, redevelopment, or a combination thereof, of such area or areas is necessary in the interest of the public health, safety, morals or welfare of the residents of the City of Waterville.'

The parties to this case have stipulated that at the meeting of the municipal officers 'no evidence or statistics of any kind were presented or received' concerning the presence or absence in the area where plaintiff's real estate was situated, of many social deficiencies which occasion urban renewal efforts.

The resolution and finding of the Municipal Officers, it will be noted, were a mere truism and a generality predicated upon Waterville as a comprehensive territory without designation as to the specific location of any of the prevalent slum or blighted districts. The resolution and finding were expressed in copied statutory language as an inchoate measure. The pronouncement as given was obvious and self evident without necessity for statistics. In 1959 the observation would without doubt have been apt for most American cities. Furthermore, at least 4 of the 6 Aldermen present and voting at the meeting of November 3, 1959 were familiar with the various areas of Waterville, had been resident in that City respectively for 10, 34, 38 and 50 years, were well acquainted with the general area comprising

'* * * the Urban Renewal project in Waterville, and particularly Temple Court where properties of Rose Warren (plaintiff) are located, and knew that this area, as well as various other areas in the City with which I was (they were) acquainted, contained buildings which were old, deteriorating, and dilapidated; and Temple Court is a narrow street and is densely populated.'

The record of the meeting of November 3, 1959 contains the following:

'IN BOARD OF ALDERMEN ORDER #88

'ORDERED, That the following question be submitted to the voters of the City of Waterville at the next regular or special municipal election:

"Shall the City of Waterville adopt the provision of the urban renewal law, Revised Statutes, Chapter 90-B, and Authorize the establishment of an Urban Renewal Authority?'

'Passed in Concurrence.'

At the same time on November 3, A.D.1959 the 6 attending and functioning Aldermen as signatories executed a warrant for a plebiscite upon the questions recited above, to be conducted by vote at the regular municipal election on December 7, 1959. The referendum was accordingly held and the popular will answered by ballot the quoted questions in the affirmative. The record discloses that all provisions of R.S.1954, c. 90-B, § 1, subsection II, III and IV were fulfilled.

On February 2, 1960 another programmed regular meeting of the municipal officers occurred. It was attended by the Mayor and all 7 of the Aldermen. The Mayor 'nominated' five citizens to serve staggered terms as the 'Urban Renewal Authority' of Waterville and 'It was so voted.' Such action constituted an appointment in compliance with R.S.1954, c. 90-B, § 2, subsection 1 which ordains that:

'The municipal officers shall appoint a board of trustees of the urban renewal authority which shall consist of 5 trustees.'

At the same meeting the Mayor appointed 15 persons as a Citizens' Committee of the Urban Renewal Authority. The Mayor and Chairman of the Planning Board were commissioned to contract with the Maine Department of Economic Development pursuant to the Federal Government's 701 Program administered by the U. S. Housing and Home Finance Agency 'for the second phase of the comprehensive planning study of the City of Waterville, at a cost to the City' not to exceed $2500 and the withdrawal of that amount was authorized from the Planning Reserve Account.

During the 3 years to follow the Municipal Officers and the Urban Renewal Authority were continuously operative in the urban renewal enterprise. The Renewal Authority enlisted expert counsel and professional assistance. Its meetings were declared by it to be public. The Federal and State governments supplied co-operative guidance. Financial aids were obtained. The City had an adopted master plan for the development of the municipality and by July of 1962 the Waterville Urban Renewal Authority had prepared and recommended to the Waterville Planning Board an urban renewal plan which the latter body approved. R.S.1954, c. 90-B, § 5.

Meanwhile the Municipal Officers met in many formal and informal sessions.

On January 21, A.D. 1963 pursuant to R.S.1954, c. 90-B, § 5, subsec. VI The Municipal Officers conducted in the Opera House at the City Building a public hearing after statutory notice. Some 600 people were in attendance. The proposed 'Maine R-6' Plan involving plaintiff's real estate was explained to the convened public by an expert. Specialists addressed the gathering. A considerable number of citizens, proponents and opponents of the project, spoke their opinions.

On February 5, 1963 the Municipal Officers met and by a 5 to 2 vote passed an Urban Renewal Resolution concerning 'The Charles Street Project' 'No. Maine R-6' where plaintiff's real estate was located. The Resolution which was read to the body by the Mayor stated inter alia that the Renewal Authority had made detailed studies of the project area in respect to conditions relating to physical, social, economic, safety, health and welfare factors, elements and circumstances and that the Municipal Officers had general knowledge of the conditions prevailing in the project area. The Municipal Officers in the Resolution averred that they found the project area to be blighted and eligible for correction under R.S.1954, c. 90-B, §§ 1 and 4 and that the urban renewal plan for the project area had been duly reviewed, considered and approved by the Municipal Officers. R.S.1954, c. 90-B, § 5, subsec. VII.

The Renewal Authority in its recommendations to the Municipal...