Berry v. Housing and Home Finance Agency

• Decision Date: 23 July 1964
• Docket Number: Civ. No. 9256.
• Citation: 233 F. Supp. 457
• Parties: Louis BERRY, Harold Berry, David M. Miro, Harvey G. Snider and Charles W. Cole, co-partners, doing business under the assumed name and style of Utica Hotel Company, Plaintiffs, v. HOUSING AND HOME FINANCE AGENCY, et al., Defendants.
• Court: U.S. District Court — Northern District of New York

233 F. Supp. 457

Louis BERRY, Harold Berry, David M. Miro, Harvey G. Snider and Charles W. Cole, co-partners, doing business under the assumed name and style of Utica Hotel Company, Plaintiffs, v. HOUSING AND HOME FINANCE AGENCY, et al., Defendants.

Civ. No. 9256.

United States District Court N. D. New York.

July 23, 1964.

Kernan & Kernan, Utica, N. Y., Willis D. Morgan, Utica, N. Y., of counsel, for plaintiffs.

Justin J. Mahoney, U. S. Atty., Samuel T. Betts, III, Asst. U. S. Atty., Albany, of Counsel, for Housing and Home Finance Agency, Robert C. Weaver, as Administrator, Housing and Home Finance Agency, Charles Horan, as Regional Administrator, Region I, Housing and Home Finance Agency.

JAMES T. FOLEY, Chief Judge.

This suit for declaratory judgment seeks drastic relief. A judicial declaration is sought that a new Redevelopment Plan for an urban renewal project and the ordinary processing and approval actions in such matters by federal and city officials and agencies over a period of years in the City of Utica be declared illegal, null and void so long as such plan includes hotels or other housing for transient use among the uses permitted in the new project area. In this particular feature of the redevelopment the specific relief prayed for is that all defendants be enjoined and restrained from expending any local or federal funds for erection of hotels or other transient housing in the redevelopment area. The federal agency and individual federal administrators of the named defendants move to dismiss the complaint upon four stated grounds.

The plaintiffs are owners and operators of the Hotel Utica, a recognized first-rate hotel in the City, and it is apparent without too much legal delving or pronouncement that new hotels or transient accommodations erected nearby may tend to lessen its business. The direct allegation is made that the erection of a new hotel in the project area will result in a substantial surplus of hotels and transient housing in the City and will compel the plaintiffs to curtail their business to such extent as to cause severe financial loss and irreparable damage. Of course, at this stage and in this type motion the legal approach must be that these claims as well as others regarding alleged failure and deficiency of the community (Utica) to obtain a competent, independent analysis of the local supply of transient housing to determine the need for additional units of such housing must be viewed as uncontroverted and accepted as provable. It should be noted that the claim in regard to the analysis is not that it was not made at all, but that it was not a competent and independent one.

The reliance of the plaintiffs to overcome settled case law in this Circuit, (Taft Hotel Corporation v. Housing & Home Finance Agency (1958), D.C. Conn., 162 F.Supp. 538, aff'd 262 F.2d 307), adverse to their right to maintain this action is placed upon a 1959 Amendment to the Housing Act of 1949. It is Section 1456(g) of Title 42, U.S.C., (Section 410 of the Housing Act of 1959), and provides:

"(g) No provision permitting the new construction of hotels or other housing for transient use in the redevelopment of any urban renewal area under this subchapter shall be included in the urban renewal plan unless the community in which the project is located, under regulations prescribed by the Administrator, has caused to be made a competent independent analysis of the local supply of transient housing and as a result thereof has determined that there exists in the area a need for additional units of such housing."

It is upon this underlined statutory directive portion that the plaintiffs seriously urge there is change from the past, and the sense of the addition to the Act is to evidence congressional purpose to bestow legal rights and standing upon them as a particular class rather than as members of the public at large with no standing to sue. (See Gart v. Cole, S.D. N.Y., 166 F.Supp. 129; aff'd. 2 Cir., 263 F.2d 244; Harrison-Halsted Community Group, Inc. v. Housing & Home Finance Agency, 7 Cir., 310 F.2d 99, cert. den. 373 U.S. 914, 83 S.Ct. 1297, 10 L.Ed.2d 414; Pittsburgh Hotels Assoc. Inc. et al. v. The Urban Development Authority of Pittsburgh et al., (D.C.W.D.Pa.), 202 F. Supp. 486; aff'd 3 Cir., 309 F.2d 186; Hilton Hotels Corp. v. Weaver, (C.A. D.C.), 325 F.2d 1010.)

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