Gardner v. Nashville Housing Authority of Metropolitan Government of Nashville and Davidson County, Tennessee

• Decision Date: 10 April 1975
• Docket Number: 74-1688,Nos. 74-1687,s. 74-1687
• Citation: 514 F.2d 38
• Parties: R. L. GARDNER and Ruth Gardner, Plaintiffs-Appellants, v. The NASHVILLE HOUSING AUTHORITY OF the METROPOLITAN GOVERNMENT OF NASHVILLEAND DAVIDSON COUNTY, TENNESSEE, et al., Defendants-Appellees. Charles H. ADAIR and June P. Adair, Plaintiffs-Appellants, v. The NASHVILLE HOUSING AUTHORITY OF the METROPOLITAN GOVERNMENT OF NASHVILLEAND DAVIDSON COUNTY, TENNESSEE, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 38

514 F.2d 38

R. L. GARDNER and Ruth Gardner, Plaintiffs-Appellants, v. The NASHVILLE HOUSING AUTHORITY OF the METROPOLITAN

GOVERNMENT OF NASHVILLEAND DAVIDSON COUNTY,

TENNESSEE, et al., Defendants-Appellees.

Charles H. ADAIR and June P. Adair, Plaintiffs-Appellants, v. The NASHVILLE HOUSING AUTHORITY OF the METROPOLITAN

GOVERNMENT OF NASHVILLEAND DAVIDSON COUNTY,

TENNESSEE, et al., Defendants-Appellees.

Nos. 74-1687, 74-1688.

United States Court of Appeals,

Sixth Circuit.

April 10, 1975.

J. Granville Clark, Russelville, Ky., for plaintiffs-appellants.

Joseph L. Lackey, Jr., Wilson Sims, John H. Bailey, III, Charles H. Anderson, U. S. Atty., Nashville, Tenn., Martha A. Johnson, Asst. U. S. Atty., for defendants-appellees.

Before EDWARDS, McCREE and MILLER, Circuit Judges.

PER CURIAM.

This is the second appeal involved in this litigation (See Gardner v. Nashville Housing Authority, 468 F.2d 480 (6th Cir. 1972)). At the first hearing United States District Judge Morton had dismissed the complaints in these two cases because plaintiffs had failed to join the United States Department of Housing and Urban Development (HUD). This court agreed that HUD was a necessary party for federal question jurisdiction under 28 U.S.C. § 1331 (1970), but vacated judgment so that plaintiffs could amend to join the essential federal department as a party.

After the amendment and the joining of HUD, the case was assigned for further hearing to the Honorable Daniel H. Thomas, Senior Judge for the Southern District of Alabama, sitting by designation.

At the second hearing the parties stipulated that the entire record, including all of the evidence at the previous hearing, should be considered by Judge Thomas, and additional evidence was introduced by HUD and by plaintiffs. On March 4, 1974, Judge Thomas entered a careful and thorough opinion, including findings of fact and conclusions of law, which led him to dismiss plaintiffs' complaints on the merits. 388 F.Supp. 481 (M.D.Tenn.1974).

This court has now reviewed the briefs, the records of these two proceedings, and Judge Thomas' opinion. We can find no basis for holding any of his findings of fact to be clearly erroneous. In this regard we refer specifically, although not exclusively, to his findings 1 through 7. Nor do we perceive any error in the District Judge's legal conclusions.

While we recognize the sincerity of the plaintiffs and we understand their intense desire to be allowed to keep the two residential properties which they own, it is clear to us that the statutory plan involved in Congress' adoption of Section 112 of the Housing Act of 1949, as amended, (42 U.S.C. § 1463 (1970)), was intended to serve areawide purposes of removing the effects of slums and housing blight. Inevitably such a scheme had to contemplate the acquisition of some standard housing which, as of the acquisition date, was still serving its owners' interests very well. The constitutionality of urban redevelopment planning by combined federal and local government action (including participation therein by private enterprise) has long ago been upheld by the Supreme Court in Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27 (1954), and by this court in Woodland Market Realty Co. v. City of Cleveland, 426 F.2d 955 (6th Cir. 1970), and Gibson & Perin Co. v. City of Cincinnati, 480 F.2d 936 (6th Cir.), cert. denied, 414 U.S. 1068, 94 S.Ct. 577, 38 L.Ed.2d 473 (1973).

We recognize that these last two cases denied relief to property owners outside of redevelopment areas who were complaining about the impact of the redevelopment on their properties, whereas our instant plaintiffs' property is directly subject to acquisition under the redevelopment plan. The holdings of the Berman, Woodland and Gibson & Perin cases appear to us to apply with even greater force to the constitutional claims of the appellants.

Further, like the District Judge, we have found in this record no abuse of procedural due process and no arbitrary and capricious actions on the part of either the federal or the local agencies. It seems to us, as it obviously did to Judge Thomas, that Nashville in general and these plaintiffs in particular have known the purpose of this plan for at least ten years.

We have, however, given special attention to plaintiffs' claims 1) that the redevelopment plan involved in this particular proceeding was the product of an illegal conspiracy between...