Gibson & Perin Co. v. City of Cincinnati

• Decision Date: 26 June 1973
• Docket Number: 72-1608.,No. 72-1607,72-1607
• Citation: 480 F.2d 936
• Parties: GIBSON & PERIN CO. et al., Plaintiffs-Appellees and Cross-Appellants, v. CITY OF CINCINNATI et al., Defendants-Appellants and Cross-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

480 F.2d 936 (1973)

GIBSON & PERIN CO. et al., Plaintiffs-Appellees and Cross-Appellants, v. CITY OF CINCINNATI et al., Defendants-Appellants and Cross-Appellees.

Nos. 72-1607, 72-1608.

United States Court of Appeals, Sixth Circuit.

Argued January 31, 1973.

Decided June 26, 1973.

COPYRIGHT MATERIAL OMITTED

S. Arthur Spiegel, Cincinnati, Ohio, for Gibson & Perin Co.; Cohen, Todd, Kite & Spiegel, Cincinnati, Ohio, on brief; Hawley Todd, Marshall C. Hunt, Jr., Cincinnati, Ohio, of counsel.

A. David Nichols, Cincinnati, Ohio, William Chadeayne, Columbus, Ohio, for City of Cincinnati, and others; Isabel Guy, Acting City Sol., Thomas F. Rehme, Asst. City Sol., Cincinnati, Ohio, on brief.

Bricker, Evatt, Barton & Eckler, Columbus, Ohio, for Associated Dry Goods Corp. and Cincinnati Redevelopment Corp.; Russell Leach, H. Franklin Crawford, III, John F. Birath, Jr., Columbus, Ohio, of counsel.

Before WEICK, EDWARDS and CELEBREZZE, Circuit Judges.

WEICK, Circuit Judge.

The controversy in this case arose out of the Cincinnati Business District Core Project Urban Renewal Plan, hereinafter referred to as "Plan", which Plan was adopted by ordinance passed by City Council in 1962 after two public hearings. The Plan was amended in 1964 and 1965. Under this Plan old, dilapidated business buildings in blighted areas of Cincinnati have been razed and replaced with fine, new, privately-owned buildings, with the help of private industry. We agree with the District Judge that urban renewal in Cincinnati has been an outstanding success and a real boon to the City.

Of the many new buildings that have been constructed under the Plan, only the one in issue here has been questioned, and that is Pogue's seven-story, shoppers' parking garage, which opened on June 1, 1967. Although it was characterized by the District Court as a single-purpose parking garage designed primarily to serve Pogue's department store, actually it serves not only shoppers at Pogue's and other department stores, but also it serves customers for other business places in that downtown area. It serves also people who are attending other evening functions in the area of the garage. The fact is that the garage is open to the general public twenty-four hours a day, seven days a week. It accommodates at least 1,200 cars, which is about four times more parking space than was previously available in the area, and really consists of two garages. It also has space for retail businesses on the ground floor, part of which already has been rented to Closson's.

The plaintiffs are retail merchants and the owner of a French restaurant, all with places of business owned or leased on the south side of Fourth Street (but outside the Urban Renewal Area), and located on the opposite side of Fourth Street from Pogue's parking garage. They do not like the design and location of the parking garage.

Plaintiffs claim, and the District Court found, that plaintiffs —

". . . were led to expect that the north side of Fourth Street would be developed for retail and office space, with a shopper\'s garage on Elm Street between Fourth and Fifth Streets;"

that instead, the City —

". . . not only approved the construction of the garage on Fourth Street between Elm and Race, but approved a single-purpose shopper\'s garage wth scissors ramps designed solely for Pogue\'s whose store is east of Block D at the corner of Fourth and Race Streets. . . .";

that the change in the Plan was made without a public hearing; that a portion of Fourth Street was vacated without notice to the plaintiffs; that the ramps on Fourth Street impede pedestrian traffic on the northerly side of Fourth Street and adversely affect plaintiffs' businesses located on the opposite side of Fourth Street. Actually, the scissors ramps protect pedestrians who walk on the public sidewalk underneath the ramps. Without the ramps the automobiles entering and exiting the garage on Fourth Street would be at the same level as the public sidewalk, and it would be very dangerous for pedestrians to walk thereon.

In their third amended complaint filed in 1969, the plaintiffs, in addition to the foregoing, have charged the defendants with violation of their civil rights, conspiracy, fraud, violation of federal and state antitrust laws, and with everything else that they could think of including the charge of depriving them of due process of law and the equal protection of the laws. They asked for injunctive relief and damages.

Defendants in the case, named in the Third Amended Complaint, were the City of Cincinnati; William C. Wichman, who was City Manager, and is now deceased; Cincinnati Redevelopment Corporation CRC, a private Ohio corporation for profit, which purchased the land from the City after the City had acquired it by condemnation or by purchase, and had razed the old buildings. (CRC constructed the new parking garage thereon and sold and conveyed it for $4,000,000 to Adcor Realty Co., a subsidiary of Associated Dry Goods, Inc., which is also the parent corporation of H & S Pogue Co., Inc., a department store.) Continuing the list of defendants: Associated Dry Goods Co.; H & S Pogue Co., Inc.; Adcor Realty Co.; Morgan Guaranty Trust Co., which acquired the title to the property from Adcor Realty Co. under a lease-back arrangement for the operation of the Pogue department store; the Regional Director of HUD; and the Secretary of the Department of Housing and Urban Development, the latter two of whom were voluntarily dismissed from the case.¹

The District Court heard the case without a jury and decided against the plaintiffs on the issues of conspiracy, fraud and antitrust violations, but found in favor of the plaintiffs on the issue that the construction of the garage on Fourth Street, rather than on Elm Street, violated the Urban Renewal Plan, and that plaintiffs, although located outside the Urban Renewal area, had standing to file the action. The Court entered a mandatory —

". . . injunction against the City and Pogue\'s Division of Associated Dry Goods Corporation, jointly and severally, requiring them to alter the Pogue completed garage by installing two elevators at Fourth and Elm Street (in addition to the existing three elevators only 80 feet from the northwest corner of Fourth and Race Street) and to improve the fire tower on Fourth Street so that it and the elevators can serve the area in which the plaintiffs are located and thus counteract the blighting effect of the garage as constructed." (App.Vol. I, p. 55)²

We affirm the District Court in its decision that there was no conspiracy, fraud or antitrust violation. We reverse the mandatory injunction issued against the City and Pogue's.

I STANDING

Pogue's new garage is located in Urban Renewal Block D, which block consists of an entire city block, bounded on the north by Fifth Street, on the south by Fourth Street, on the east by Race Street, and on the west by Elm Street.

Only the plaintiffs, whose places of business are located outside the Urban Renewal area, have filed suit. They claim that the location and design of the garage have resulted in economic injury to them.

The threshold question therefore is whether persons located outside the Urban Renewal area have standing to maintain this action. We are of the opinion that plaintiffs do not have standing.

Plaintiffs contended in the District Court that they do have standing on the following grounds:

1) As federal taxpayers;

2) Under the Administrative Procedure Act;

3) As persons having a personal stake in the outcome of the case; and

4) As private attorneys general.

The District Court ruled that plaintiffs' contentions were untenable as federal taxpayers and under the Administrative Procedure Act. We agree. The Court, however, held that they had standing as persons having a personal stake in the outcome of the case, and as private attorneys general. We disagree.

No cases have been cited to us by the Court or by the parties, nor have we found any cases, where persons located outside the Urban Renewal area have been permitted to question the design or location of buildings approved by the agency (the City, in the present case) as being in conformity with the Plan, said agency having been authorized by Congress to act. There is no general statutory right of appeal to the United States District Courts from decisions of federal, local or public agencies, and private persons engaged in urban renewal projects under 42 U.S.C. § 1450 et seq. The Secretary is authorized to sue and to be used. 42 U.S.C. § 1456(c)(1). Suits, of course, could be filed for violation of specific regulations adopted by the Secretary of HUD under the provisions of § 1455(c)(1) by persons having standing.

Nor do we find authority for the mandatory order issued by the District Court ordering the City and the purchaser of property from the redeveloper, to make changes in completed buildings which the purchaser had acquired in good faith and for which it had paid a large sum of money.

The District Court recognized that it was charting a new course in virgin territory, — a course which we believe would have an adverse effect on future Urban Renewal projects, if persons located outside the project may question the decisions relating to the project made by the duly authorized local public agencies.

Not only was the project approved by HUD, but the Plan and the design and location of the garage were specifically approved by the City.

Standing to sue as "private attorneys general" rests on an explicit provision in the regulatory statute conferring standing, which is absent here. Data Processing Service v. Camp, 397 U.S. 150, 153 n. 1, 90 S.Ct. 827, 25 L. Ed.2d 184 (1970).

Review of decisions of federal agencies may be obtained under the Administrative Procedure Act. Contrary to plaintiffs' claims, the City is not a federal agency as defined in the Act. 5 U.S.C. § 701(b)(1). Furthermore, the Director and the Secretary of the federal...