Blachman v. Erieview Corporation, 15044.

• Decision Date: 19 December 1962
• Docket Number: No. 15044.,15044.
• Parties: Harry A. BLACHMAN, As a Taxpayer, Plaintiff-Appellant, v. ERIEVIEW CORPORATION, City of Cleveland, Housing and Home Finance Agency, Robert C. Weaver, Administrator, Public Housing Administration, Robert C. Weaver, Administrator, United States of America, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

311 F.2d 85 (1962)

Harry A. BLACHMAN, As a Taxpayer, Plaintiff-Appellant, v. ERIEVIEW CORPORATION, City of Cleveland, Housing and Home Finance Agency, Robert C. Weaver, Administrator, Public Housing Administration, Robert C. Weaver, Administrator, United States of America, Defendants-Appellees.

No. 15044.

United States Court of Appeals Sixth Circuit.

December 19, 1962.

Harry A. Blachman, Cleveland, Ohio, for appellant.

Ralph S. Locher, Director of Law, Joseph H. Crowley, Chief Counsel, Daniel J. O'Loughlin, Asst. Director of Law, Cleveland, Ohio, for City of Cleveland.

Bricker, Evatt, Barton, Eckler & Niehoff, Richard C. Pickett, Columbus, Ohio, for Erieview Corporation.

James D. Guilfoyle, Acting Asst. Atty. Gen., Morton Hollander, Jerry C. Strauss, Attorneys, Department of Justice, Washington, D. C., Merle M. McCurdy, U. S. Atty., Cleveland, Ohio, for the United States.

Before O'SULLIVAN and SMITH,^* Circuit Judges, and BOYD, District Judge.

J. JOSEPH SMITH, Circuit Judge.

The City of Cleveland is proceeding with federal assistance to redevelop through its "Erieview" project a commercial area for commercial uses. The Cleveland City Charter permits a taxpayer to institute proceedings to restrain "the misapplication of funds of the City, or abuse of its corporate powers, or execution or performance of any contract made in behalf of the City in contravention of law" after demand to institute such a suit has been made on the City Director of Law and he has refused. See Cleveland City Charter, sections 87, 90. Plaintiff-appellant, as a taxpayer, brings such an action in federal court, alleging that the City has entered into an illegal contract with the United States for loan to the City of funds for urban renewal unauthorized by statute and a second illegal contract with the Erieview Corporation for sale to it of lands for redevelopment under the first contract. Federal question jurisdiction is claimed to exist under 28 U.S.C. § 1331. Plaintiff's motion pursuant to 28 U.S.C. § 1653 to amend his complaint to allege the jurisdictional amount more fully is granted. Since under local law he sues in the right of the municipality, the amended allegation of financial loss to it appears to be sufficient. It may also be assumed that plaintiff presents a case or controversy suitable for determination in federal court. Cf. Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947); Doremus v. Board of Education, 342 U.S. 429, 434-435, 72 S.Ct. 394, 96 L.Ed. 475 (1952).

The land which the Erieview Corporation is to redevelop is part of a Cleveland project known as "Erieview" which is aimed at redeveloping a predominantly commercial area for commercial uses. This is the same project unsuccessfully attacked in Grisanti v. City of Cleveland, 179 N.E.2d 798 (Ohio Com.Pl.1961), aff'd 181 N.E.2d 299 (Ohio Ct.App.1962), appeal dismissed, 173 Ohio St. 386, 182 N.E.2d 568 (1962), appeal dismissed for want of a substantial federal question, 83 S.Ct. 111. The statute which the appellant here claims to have been violated by the federal grant of funds is 73 Stat. 675 (1959), as amended, 42 U.S.C. § 1460(c) which provides as here relevant:

"Financial assistance shall not be extended under this subchapter with respect to any urban renewal area which is not predominantly residential in character and which, under the urban renewal plan therefor, is not to be redeveloped for predominantly residential uses: Provided, That, if the governing body of the local public agency determines that the redevelopment of such an area for predominantly nonresidential uses is necessary for the proper development of the community, the

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