Foster v. City of Detroit, Michigan
| Decision Date | 10 June 1966 |
| Docket Number | Civ. No. 21904. |
| Citation | 254 F. Supp. 655 |
| Parties | Thomas E. FOSTER and Georgia Lee Foster, Plaintiffs, v. CITY OF DETROIT, MICHIGAN, Defendant. |
| Court | U.S. District Court — Western District of Michigan |
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Elvin H. Wanzo, Detroit, Mich., for plaintiffs.
Robert Reese, Corp. Counsel, Edward M. Welch, William Dietrich, Geraldine B. Ford, Asst. Corp. Counsel, Detroit, Mich., for defendant.
This is a class action under rule 23(a) (3) of the Federal Rules of Civil Procedure brought by the named plaintiffs, Thomas E. Foster and Georgia Lee Foster, in behalf of themselves and other property owners similarly situated. It arises out of condemnation proceedings instituted by the City of Detroit, Michigan, in the state court in 1950 against certain property in the city.
On August 16, 1962, this court issued an order dismissing the action for lack of jurisdiction. This order was reversed by the Court of Appeals for the Sixth Circuit and the case remanded to this court with directions to take jurisdiction in the matter and hear and decide the case on its merits. Foster v. Herley, 330 F.2d 87 (6th Cir. 1964). The Circuit Court held that jurisdiction exists under Section 1331, Title 28, United States Code1, as the plaintiffs seek to enforce a right which has its origin in the Constitution of the United States, which right will be supported if the Constitution is given one construction and will be defeated if the Constitution is given another construction. Foster v. Herley, supra, page 91.
The question of the jurisdiction of this court over the subject matter of the action has again been raised by defendant and has been argued extensively, both orally and in the briefs filed by counsel for the respective parties.2 This court finds these arguments to be, not only repetitious, but irrelevant. The Court of Appeals has directed this court to take jurisdiction and hear the case on its merits. This conclusively settles the question in this court of its jurisdiction of the litigation. Sherwin v. Welch, 319 F. 2d 729 (D.C.Cir. 1963); Paull v. Archer-Daniels-Midland Co., 313 F.2d 612 (8th Cir. 1963). Deauville Associates v. Murrell, 180 F.2d 275 (5th Cir.), cert. denied, 340 U.S. 821, 71 S.Ct. 54, 95 L.Ed. 603, rehearing denied, 340 U.S. 893, 71 S.Ct. 204, 95 L.Ed. 648 (1950); A. M. Webb & Co. v. Robert P. Miller Co., 176 F.2d 678 (3rd Cir. 1949). It is now incumbent upon this court to pass upon the merits of the case.
Although the proofs presented by both parties to the action are not as complete as is normally desirable, the court finds the facts to be as follows.
On February 7, 1949, the Detroit Housing Commission, in anticipation of favorable public housing legislation by the 81st Congress of the United States, recommended to the Common Council of the City of Detroit that certain vacant land sites and certain slum clearance sites be approved as proposed public housing sites. The slum clearance sites included an area bounded generally by Waterloo, Chene, Larned and Dequindre Streets, and known as the "Mich. 1-11" area.3 On February 14, 1949 the Common council approved these recommendations as a basis for the preparation of applications for federal loan contracts for 14,350 public housing units, and directed the Corporation Counsel for the City of Detroit to prepare and submit to the Council for approval the proper resolutions for the condemnation of these sites, directed the Department of Buildings and Safety Engineering to refer to the Council all applications for building permits in these sites, and provided that any protests received in relation to any of these sites would be referred to the City Plan Commission for public hearings and further report prior to action by the Council.4
On June 7, 1950, pursuant to a resolution adopted by the Common Council on April 25, 19505, the Corporation Counsel filed a petition in Recorder's Court (Condemnation Case No. 2073) for the acquisition of property in the City of Detroit bounded by Dequindre (Grand Trunk Railroad Right of Way), Chene, Macomb and Clinton Streets, part of the "Mich. 1-11 area". A lis pendens was filed with the Register of Deeds for Wayne County, and form letters advising that condemnation was about to be started were sent out to plaintiffs and all other persons having an interest in properties in the area.
Subsequently, a petition and an order consolidating and regrouping the various parcels to be condemned were filed pursuant to a resolution adopted by the Common Council on September 29, 1953, ordering such regrouping. On June 1, 1954 the City of Detroit acquired by condemnation the area bounded by St. Aubin, Chene, Madison and Mullett Streets, which was part of the area known as "Mich. 1-11".6 However, no public housing was ever built on this site or any sites in the "Mich. 1-11" area, as the Detroit Housing Commission was never able to reach an agreement with the Public Housing Administration on the type of structures or labor costs therefor. In 1955 the Federal Housing Administration issued a stop order prohibiting further action.7 On June 16, 1960, a motion and order discontinuing the petitions for acquisition of property and lis pendens filed in the pending cases were filed as authorized by the Common Council on May 31, 1960.8
Meanwhile, on November 18, 1959 the Detroit City Plan Commission approved the submittal of an application to the Urban Renewal Administration for Elmwood Park Rehabilitation Project #1, located in the area generally bounded by Vernor, Chene, Lafayette and the Grand Trunk Railroad, which encompassed the altered "Mich. 1-11" site.9 On January 13, 1961 the development plan for this project was approved. On May 3, 1961, the City Plan Commission approved submission of a planning application to the Urban Renewal Administration for Elmwood Park Rehabilitation Project #2 for the area bounded by Lafayette, Elmwood, Jefferson, and the Grand Trunk Railroad, which encompassed part of the original "Mich. 1-11" site. Condemnation proceedings were again instituted in the Recorder's Court against the property in the "Mich. 1-11" area, which as of now has been completely cleared.10
The named plaintiffs, Thomas E. and Georgia L. Foster, during the period in question owned 3 parcels of land located in the "Mich. 1-11" area, on St. Aubin, between Macomb and Clinton Streets. Lot 30 at 1312 St. Aubin contained a two-story frame dwelling with an apartment on each floor. Lot 28 at 1304 St. Aubin contained a brick building with a store downstairs and an apartment upstairs. In between these parcels was lot 29, a vacant lot.11
The plaintiffs received a letter in August of 1949 informing them of the city's interest in condemning their property and requesting that they attend a meeting at the city hall. At this meeting, attended by approximately 200 persons, no objections to the condemnation were heard and those attending were told that they would be further notified at a later date. In the spring of 1950 the plaintiffs received a letter from the office of the corporation counsel, notifying them of the initiation of condemnation proceedings and requesting them to fill out a questionnaire relating to the ownership of the property and directing them to see the Director of Real Estate, 945 Griswold Building in Detroit, if they had any questions. Some time after receiving this letter, plaintiff Thomas Foster went to the Griswold Building, where he discussed the matter with a person he understood to be the official named in the letter, who told him that plaintiffs were not to improve their property in an attempt to get more money from the city and that plaintiffs would be notified when the property was to be taken. Plaintiffs' property was never taken under the action filed in 1950, which was discontinued in 1960.
In 1949 plaintiffs were renting both floors of each of these dwellings, receiving $50.00 for each of the upper apartments and $55.00 for each of the lower apartments. Some time in 1949, plaintiffs received a notice of certain building code violations and spent $1,700.00 to make the building at 1312 St. Aubin conform to building and safety regulations.
Plaintiffs' property was occupied from 1950-1954 for approximately the same rentals as plaintiffs were receiving in 1949. However, after 1954 when the several blocks adjacent to plaintiffs' property were condemned and razed by the city, plaintiffs were unable to obtain tenants. The property at 1304 was never occupied after that time. The upper flat at 1312 was rented until September of 1956, and for a short time thereafter was occupied by a non-paying tenant. After 1954 the buildings deteriorated rapidly. The dwelling at 1304 was broken into and damaged so often from 1954 to 1958 that the police finally refused to investigate. The boards over the doors and windows were repeatedly torn off, the plumbing and wiring were ripped out, and anything movable was carried away. Similar vandalization of the building at 1312 occurred during 1957 and 1958. After 1955 plaintiffs were unable to obtain insurance on the property at 1312 and in 1954-56 were able to insure the property at 1304 only at a rate 1½ times that charged in 1951. On July 16, 1958 plaintiffs received notices from the Detroit Department of Building and Safety Engineering that the buildings were dangerous and had to be put in a safe condition or be torn down. After several unsuccessful attempts to have the city demolish the buildings and deduct the cost from the eventual condemnation award, plaintiffs paid a private contractor $1,500.00 to tear them down.
After the buildings were demolished plaintiffs owned three vacant lots. In 1961 condemnation proceedings were again initiated against plaintiffs' property, and on February 2, 1963 plaintiffs received $5,200.00, which valuation defendant admits to be the fair cash market value thereof at the time the property was acquired.12
Plaintiffs contend...
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