414 F.2d 687 (5th Cir. 1969), 26781, Arrington v. City of Fairfield, Alabama

Docket Nº:26781.
Citation:414 F.2d 687
Party Name:Ed ARRINGTON et al., Plaintiffs-Appellants, v. The CITY OF FAIRFIELD, ALABAMA et al., Defendants-Appellees.
Case Date:August 07, 1969
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 687

414 F.2d 687 (5th Cir. 1969)

Ed ARRINGTON et al., Plaintiffs-Appellants,


The CITY OF FAIRFIELD, ALABAMA et al., Defendants-Appellees.

No. 26781.

United States Court of Appeals, Fifth Circuit.

Aug. 7, 1969

Page 688

Demetrius C. Newton, Birmingham, Ala., Charles H. Jones, Jr., Cambridge, Mass., Michael Davidson, Jonathan Shapiro, Jack Greenberg, New York City, for appellants.

Frank B. Parsons, City Atty., Fairfield, Ala., J. Clewis Trucks, Fairfield,

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Ala., for appellees Fairfield, Alabama Housing Authority, Mrs. Wilma Andrews, in her capacity as Director, and C. J. Donald.

Kenneth Perrine, Birmingham, Ala., Leader, Tenenbaum, Perrine & Swedlaw, for Engel Realty Co.

James W. May, Corretti, Newsom, Rogers & May, Douglas P. Corretti, Birmingham, Ala., as amicus curiae of Birmingham Bd. of Realtors, Inc.

Before COLEMAN and GODBOLD, Circuit Judges, and SCOTT, District Judge.

SCOTT, District Judge:

This is a class action in equity by Negro residents of the Englewood section of Fairfield, Alabama, seeking an injunction to prohibit the City of Fairfield and Engel Realty Company from displacing them from their residences and their consequent removal from the City of Fairfield in the absence of adequate relocation housing in the City of Fairfield. Plaintiffs' complaint was dismissed by the District Court for the Northern District of Alabama. We hold that the District Court was in error, and remand for further proceedings consistent with this opinion.

The complaint is founded upon Title 28, U.S.C. § 1343(3) and (4), Title 42 U.S.C. §§ 1981, 1982, 1983, 1988 and the Thirteenth and Fourteenth Amendments to the United States Constitution. Plaintiffs-appellants also seek preliminary and permanent injunctions to 'restrain defendants from continuing their present course of conduct, policies, practices, custom and usage of providing municipal facilities on a discriminatory basis and from pursuing an urban renewal program in such a way as will cause the involuntary relocation of plaintiffs and members of their class, without providing for suitable relocation within the City of Fairfield, and from making relocation outside the City inevitable by zone changes which foreclose adequate residential redevelopment'.

The primary defendants in the action are the City of Fairfield and Engel Realty Company, a private company with which the City of Fairfield contracted to commercially develop the Englewood area. Other defendants named in the complaint are various city officials and agencies who have acted in the name of the City and the commissioner of the Fairfield Housing Authority.

In their complaint, filed on July 11, 1968, plaintiffs sought to preliminarily and permanently enjoin the City of Fairfield and others from proceeding with the condemnation, acquisition or demolition of properties in Englewood. Without answering, all defendants moved to dismiss for failure to state a claim, and then moved for summary judgment. A hearing on plaintiffs' motion for a temporary injunction to enjoin displacement pending a final hearing was held on August 9, 1968, and at the conclusion of the hearing the District Court denied plaintiffs' motion. The Court entered judgment on August 13, 1968, granting the defendants' motion to dismiss and motion for summary judgment.

Plaintiffs filed notice of appeal on August 22, 1968, and on September 16, 1968, moved for an injunction pending appeal. A panel of this Court granted the motion for the injunction pending appeal on October 10, 1968. This injunction was vacated on February 17, 1969. by the present panel.

The plaintiffs live in Englewood, a predominantly Negro section of Fairfield. As found by the court below, most of the buildings are structurally defective and do not meet the health standards of the City of Fairfield. The streets are inadequate and unpaved and an open drainage ditch runs through the entire area. Furthermore, the majority of the plaintiffs are tenants.

In 1964 an interstate highway was proposed for building through portions of Englewood. To comply with state law, the City of Fairfield rezoned Englewood from predominantly residential to tourist and commercial.

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During 1966 and 1967 the Fairfield Housing Authority and the regional office of the Department of Housing and Urban Development (HUD) discussed informal proposals for an urban renewal program in Englewood, which qualified as a 'slum' area. The project was to displace 161 families of whom 150 were Negroes.

Before it was notified of the outcome of its request for federal urban renewal funds, the City of Fairfield decided to proceed with the commercial development of Englewood. The mayor met with owners of the property and Engel Realty Company, agent for the owners, to determine the feasibility of building a motel near the interstate highway in order to promote tourist business in the City. In furtherance of its plan, the City adopted the following resolution:

'BE IT RESOLVED by the City Council of the City of Fairfield that the Mayor be and hereby is authorized to enter into a contract with Engel Realty Company in consideration of Engel Realty Company's completion of a commercial development in the Englewood area of the City of Fairfield, the City of Fairfield will install drainage pipe in and cover the drainage ditch in that area commonly known as 'tar ditch' and that the City of Fairfield will complete such work prior to the completion of the site preparation for the proposed development by the Engel Realty Company. 'Adopted 4th day of December, 1967. 'Approved 5th day of December, 1967.'

In dismissing the plaintiffs' claim, the District Court made the following findings of fact:

'1. That the plaintiffs were not property owners in Englewood; it concluded that, as such, they had no standing to invoke the jurisdiction of the court;

'2. That there was no urban renewal program under submission, as provided by 42 U.S.C. Section 1451, and that the City had no intention of trying to renew the project;

'3. That the property involved was 'blighted' and 90% Of the buildings were structurally defective and subject to being condemned for health reasons;

'4. The property was not being condemned by the City or Housing Authority under the power of eminent domain;

'5. That Engel Realty did attempt to purchase the property for the purpose of building a motel and other commercial enterprises, but that it was not acting as an agent for the City, Housing Authority, or any other defendant in its attempt to purchase the property; and

'6. That Engel Realty did not participate in the city's urban renewal program.'

The trial court concluded that the plaintiffs as tenants had no interest in the property or in the contracts regarding the property and, therefore, had no right to invoke the jurisdiction of the federal court. The Court further stated that the director of the Housing Authority, clerk of the City, members of the City Council and planning committee and the mayor of the City were not proper party defendants.

Initially, it is important to recognize the narrow issues on this appeal. A determination of the merits is not before us. This Court is not involved with fact issues. The District Court heard oral testimony on motions to dismiss and for summary judgment and then dismissed the case for lack of standing and for failure to state a claim upon which relief may be granted. The fact issues of discrimination and displacement have not been...

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