Amen v. City of Dearborn

• Decision Date: 14 August 1973
• Docket Number: Civ. A. No. 37242.
• Citation: 363 F. Supp. 1267
• Parties: Katherine AMEN et al., Plaintiffs, v. CITY OF DEARBORN, a municipal corporation, et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

363 F. Supp. 1267

Katherine AMEN et al., Plaintiffs, v. CITY OF DEARBORN, a municipal corporation, et al., Defendants.

Civ. A. No. 37242.

United States District Court, E. D. Michigan, S. D.

August 14, 1973.

COPYRIGHT MATERIAL OMITTED

Michael J. Barnhart, Center for Urban Law & Housing, Abdeen M. Jabara, Detroit, Mich., for plaintiffs.

Joseph Burtell, Legal Dept., City of Dearborn, for City of Dearborn.

James E. Tobin, Miller, Canfield, Paddock & Stone, Detroit, Mich., for defendant School Dist. of City of Dearborn.

OPINION

RALPH M. FREEMAN, District Judge.

This is a class action suit alleging violations of plaintiffs' rights under the Fifth and Fourteenth Amendments of the United States Constitution by the City of Dearborn, its officials and the Dearborn School Board. The plaintiffs are property owners, past and present, and other residents of two areas of Dearborn located generally in the southeast section of the City. They seek injunctive relief to stop certain clearance activities conducted by the City in the subject areas, claiming that these activities have constituted a taking without due process of law and have denied them equal protection. In addition, plaintiffs request that individual members of the classes be permitted to file damage claims against the City subsequent to a determination that equitable relief will be granted. For the reasons stated in this opinion, the court finds that the City and its officials have taken plaintiffs' property without due process of law. However, no violation of plaintiffs' rights to equal protection is found. The court also finds that the Dearborn School Board has not denied plaintiffs due process or equal protection.

The first area involved in this suit is known as the Eugene-Porath area. It is circumscribed by Michigan Avenue on the north, Wyoming Street on the east, the Ford Expressway and its exit ramps on the south and west. The second area is known as the South End and is generally circumscribed by the Penn Central R.R. on the north, the Dearborn City limits on the east and south, and the Chesapeake & Ohio R.R. on the west. To the south of Eugene-Porath and to the west of the South End is located the Ford Motor Company Rouge Plant. A map of the South End is appended to this opinion for aid in understanding the discussion that follows.

The named plaintiffs in this case represent six subclasses as designated by order of this court dated June 12, 1972. Those subclasses are:

1. Homeowners in the Eugene-Porath area;

2. Homeowners north of Lapeer Street in the South End;

3. Homeowners south of Lapeer Street in the South End;

4. Former homeowners of the South End and Eugene-Porath areas;

5. Past and present tenants of the South End and Eugene-Porath areas;

6. Neighborhood associations, including the Southeast Dearborn Community Council and the Eugene-Porath Community Association.

Defendants, other than the School Board, requested that this court reconsider the designation of this case as a class action after hearing the evidence adduced at the trial. However, no facts were brought out at the trial that would change the opinion rendered on this matter. Thus the court reaffirms its opinion of May 17, 1972 and its subsequent order permitting this case to proceed as a class action.

The defendants include the City of Dearborn, various departments and divisions of the City, including the City Council, Orville Hubbard, the mayor, Simon Banda, Director of Housing, Mario Manarino, Director of Community Development, William Martin, Superintendent of Building and Safety, and John Nagy, City Planner, and others. The plaintiffs have also sued the Dearborn School Board. In this opinion we will refer to the City and all of its officials as "the City". This reference does not include the School Board which will be referred to separately.

Jurisdiction in this matter is based upon 28 U.S.C. §§ 1331 and 1343(3) and 42 U.S.C. § 1983, plaintiffs having alleged that they have been damaged individually in an amount in excess of $10,000 and that their constitutional rights have been violated. We note that since the trial of this case, the Supreme Court has made it clear that cities and municipalities are not subject to suit under § 1983 for either equitable relief or money damages. See City of Kenosha, Wisconsin v. Bruno, 412 U.S. 507, 93 S. Ct. 2222, 37 L.Ed.2d 109, decided June 11, 1973; Moor v. County of Alameda, No. 72-10, decided May 14, 1973, 411 U. S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596. Thus this court has no jurisdiction over the City itself under § 1983. However, this does not prevent individual City officials from being sued under § 1983, and the court would still have jurisdiction over the City under § 1331.¹

The only challenge to jurisdiction by the defendants was made by the City in its Answer to the First Amended Complaint in which it said, "Plaintiffs have failed to show that defendant, or its agents have acted under color of law." Clearly the City and its agents have been acting under color of state law which is the requirement of § 1983. Of course, the City is not liable under that section, but not for the reason stated in the answer. Moreover, the agents of the City are covered by the language of the statute. Therefore, we reject the only objection voiced by the defendants to this court's jurisdiction.

Several incidental matters should be clarified before discussing the facts of this case. Plaintiffs introduced the testimony of Dr. Barbara Aswad together with a survey conducted by her. This occasioned serious objections by the defendants as to the relevancy of the survey material. Because we are able to reach a result favorable to the plaintiffs without consideration of this testimony based upon the survey, we find it unnecessary to determine the admissibility of the survey evidence.

Secondly, the plaintiffs sought to introduce certain exhibits against the City which were admitted against the School Board. We find that the School Board and the City are separate legal entities and that documentation produced by the School Board would not necessarily be admissible against the City. Even though the School Board may have kept these documents at the command of certain statutes, nevertheless, we do not think that this makes them admissible against the City who had nothing to do with their preparation or the activity which precipitated their compilation.

We also note that the individual defendants, including the mayor, have never answered the Complaint in this matter and are technically in default. Answers have been filed on behalf of the School Board and the City alone. Nonetheless, the City Attorney for Dearborn has proceeded as though he represented all individual defendants and we will treat them as such even though he has never filed an appearance in this matter.

Turning now to the events in this case, we note that the Complaint was filed in October of 1971. The court subsequently granted plaintiffs' motion for a preliminary injunction on March 22, 1972 restraining defendants from acquiring any property in the affected areas until a decision on the merits could be reached. In the interim, the court held hearings on individual properties and permitted the City to buy houses where the owner expressed that particular hardship would occur unless the City were allowed to purchase the property. The City was also restrained from soliciting sales of property and destroying or rezoning property.

Trial was begun in this case February 6, 1973. From those proceedings and from various admissions and stipulations of the parties, the court makes the following findings of fact.

Findings of Fact

1. The City intends to clear the area of the South End north of Lapeer by purchase, to demolish all structures, and to rezone the area for industrial and business use. The City also intends to clear the Eugene-Porath area and to rezone it for industrial and business use.

2. The City undertook to complete this program of clearance through the following projects:

(a) the North Roulo Project, which was the only project funded by the federal government;

(b) the Ferney Street Project, the Tractor Street Project, and the Robert-Edsel-Marie Clearance Project, all of which were authorized by city ordinances, 5-517-68, 7-681-66 and 5-516-68, respectively, in which the City Council resolved that the areas or streets in question were slums, blighted, deteriorated and appropriate for clearance;

(c) the Akron-Holly Clearance Project and the Roulo-Amazon Urban Renewal Clearance Project, which were created by inclusion in the Capital Improvements Planning Program (CIPP) of 1968-1973, and the Salina Street Clearance Project, created by inclusion in the 1970-1974 CIPP.

3. Presently the City has three clearance projects:

(a) the Ferney Street Project, mentioned above;

(b) the Salina District Clearance Project, which includes all of the above projects requiring additional clearance; and

(c) the Eugene-Porath Clearance Project.

4. The Salina District Clearance Project and the Eugene-Porath Clearance Project were authorized only by their inclusion in the 1971-1975 CIPP.

5. There is no present announced plan or project of the City for the clearance of the South End area south of Dix.

6. The City has never stated specifically from whence it derives its authority to carry out these projects. At one point the City Council passed ordinance 69-1626 which stated that the projects were being carried out under the Rehabilitation of Blighted Areas Act; however, the City did not thereafter follow the procedures set forth in that Act. Although the City established the District Council provided for in the Act, the council met only once and the terms of the members expired without any reappointments.

7. The City also has a policy or program operating throughout the City to purchase and demolish garage-type homes, i. e. homes situated on the rear of the lot. The City has stated in its Answer to the...