Hanky v. City of Richmond
| Decision Date | 12 February 1982 |
| Docket Number | Civ. A. No. CA81-1115-R. |
| Citation | 532 F. Supp. 1298 |
| Court | U.S. District Court — Eastern District of Virginia |
| Parties | John J. HANKY, Jr., et al., Plaintiffs, v. The CITY OF RICHMOND, Defendant. |
James F. Pascal, Hirschler, Fleischer, Weinburg, Cox & Allen, Everette G. Allen, Jr., Debra K. Meyer, Richmond, Va., for plaintiffs.
Ronald R. Wesley, William H. Hefty, Richmond, Va., Harvey M. Applebaum, Virginia G. Watkin, James R. Atwood, Covington & Burling, Washington, D. C., for defendant.
Plaintiffs bring this action pursuant to 42 U.S.C. § 1983 seeking declaratory and injunctive relief for alleged violations by the defendant of the fifth and fourteenth amendments of the Constitution, and for assertedly pendent claims of violation of state antitrust laws and interference with contractual relationships. Plaintiffs originally filed their Bill of Complaint in the Circuit Court of the City of Richmond, Division I on December 28, 1981. The defendant removed the suit to this court on December 31, 1981 under 28 U.S.C. § 1441(a) and (c). Jurisdiction of the Court rests upon 28 U.S.C. § 1331(a).
The matter is before the Court on plaintiffs' motion under Fed.R.Civ.P. 65(a) for a preliminary injunction. For the reasons which follow, the Court concludes that this requested relief must be denied.
Plaintiffs are United States citizens doing business as Canal Square Associates, a general partnership formed under the laws of the Commonwealth of Virginia. Defendant City of Richmond ("City") is a municipal corporation of the Commonwealth of Virginia, organized and existing pursuant to the constitution and laws of that state.
The parties have stipulated that plaintiffs are the fee simple owners of a parcel of real property in the City, designated as Canal Square Parcel A on the plat entitled Lands of the Richmond Metropolitan Authority, 5th & Canal Streets, dated February 16, 1980.1 This parcel is bounded generally by the Richmond Metropolitan Authority Expressway and Fifth, Seventh and Canal Streets. Plaintiffs allege in their complaint that they acquired an option on September 29, 1981 from the Richmond Metropolitan Authority ("RMA") to purchase two parcels of unimproved real property adjacent to Parcel A, designated Canal Square Parcels B and C on the same plat.2 These parcels are referred to collectively as the Hilton Hotel Site. Plaintiffs assert that they in turn granted an exclusive option on February 6, 1981 to Richmond Hilton Associates ("RHA"), a Virginia limited partnership, to purchase the site,3 and that RHA exercised this option on November 27, 1981. Plaintiffs contend that RHA desires and intends to develop a Hilton Hotel on the property, a project in which, say the plaintiffs, it has been actively engaged since September, 1980.
Plaintiffs contend that the City has attempted to thwart the construction of the Hilton Hotel because it allegedly perceives the Hilton as a threat to the viability of its own program for the rejuvenation of down-town Richmond. The City expressed concern over the economic well-being of the downtown area in its 1964 Master Plan which noted a decline in retail sales and in the number of retail establishments, as well as a decrease in the assessed valuation of land and improvements in that section of the City.4 On November 28, 1977 the City Council approved the Redevelopment Plan for Downtown Redevelopment Project Number One ("Project One Plan"),5 which called for the redevelopment of a 15.4 acre Project Area bounded by Broad, Fourth, Clay and Seventh Streets in Richmond.6 Among the objectives of Project One was the provision of land for offices, a hotel and convention center with related parking, retail and entertainment activities.7 This convention and exhibition center with an adjoining convention hotel had been recommended in a May, 1976 report by the Down-town Development Commission, created by the City in 1974, which further suggested that the multi-use facility be located north of Broad Street in the Sixth Street area, near the City Coliseum at Sixth and Clay Streets.8 The City intends that the Project One hotel will be developed by private interests with the encouragement of the City, but without it serving a proprietary role.9
The Planning Director's decision is reviewable by the Planning Commission.
Pursuant to Ordinance 81-200, the City's Director of Planning reviewed and disapproved of the plan of development for the proposed Hilton on November 25, 1981. The Planning Commission upheld this decision after hearings on December 14 and 22. Plaintiffs now argue that the ordinance is void for vagueness, outside the scope of the City's police power, and amounts to a taking without just compensation and is thereby unconstitutional. They seek a preliminary injunction ridding themselves of its effect and vitiating the Planning Director's disapproval of the Hilton development pending the outcome of this litigation.
The standard for determining whether preliminary injunctive relief should issue is the balance-of-hardship test of Blackwelder Furniture Co. v. Seilig Manufacturing Co., 550 F.2d 189 (4th Cir. 1977). See Maryland Undercoating Co., Inc. v. Payne, 603 F.2d 477 (4th Cir. 1979). This test involves the "flexible interplay" of these factors:
The first step of the Court's analysis requires a balancing of the likelihood of irreparable harm to the plaintiffs without an injunction against the likelihood of harm to the defendant with an injunction. If a "decided imbalance of hardship should appear in plaintiffs' favor, it is enough that grave or serious questions are presented, ..." and plaintiffs do not have to show a likelihood of success on the merits. These are the two most important factors, and the need for plaintiffs to show likelihood of success on the merits increases as the probability of irreparable injury to plaintiffs without an injunction decreases. Also, if the plaintiffs have a strong probability of success on the merits, even a "possible" irreparable injury will suffice to warrant injunctive relief. Blackwelder, supra, at 195; Maryland Undercoating, supra, at 481.
In their motion for a preliminary injunction, plaintiffs sought to enjoin the City from "taking any action (including, without limitation, giving any effect to Ordinance No. 81-200 or any actions taken pursuant thereto ...) to prevent, hinder or delay ..." the plaintiffs from developing their property for hotel purposes on the grounds that such development "would, or could, or might have any impact or consequence of any kind ..." on the development of the Project One hotel. At oral argument, however, plaintiffs' counsel narrowed the expansive scope of this requested relief by indicating that plaintiffs desire principally to "be free of the ordinance", i.e., to restore the parties to the situation which existed before it was passed, which would allow the plaintiffs and RHA to proceed with the Hilton development, or any other use for the plaintiffs' land, without the impediment of the Planning Director's disapproval or possible disapproval.
Determination of whether plaintiffs face irreparable harm without an injunction requires examination of the quantum and quality of their likely harm relative to the detriment to the City should an injunction issue. Blackwelder, supra, at 196. Irreparability of harm includes the "impossibility of ascertaining with any accuracy the extent of the loss." Id. at 197.
Neither party to this suit has submitted any concrete evidence of the injury it will face with or without an injunction. Plaintiffs present no testimony, affidavits or other specific materials to substantiate their claim that they will suffer irreparable injury in the absence of an injunction. At hearing, plaintiffs' counsel argued that Ordinance No. 81-200 suffers from unconstitutional vagueness since it fails to provide adequate standards to guide the Planning Director's decision on proposed construction projects and thereby fails adequately to inform plaintiffs of the uses they could make of their property. This uncertainty over permissible uses of the land, plaintiffs say, renders measurement of the value of their property impossible, and inflicts on them the injury of holding property the value of which cannot be determined. In addition to whatever injury inherently exists in such a situation, plaintiffs contend that this uncertainty may be deterring potential investors, who would otherwise be interested, from attempting to purchase the property from them.
The Court is of the view that these claims of injury deserve little weight, relative to...
To continue reading
Request your trial
-
Rum Creek Coal Sales, Inc. v. Caperton
...harm will be far more than merely the resulting uncertainty from allegedly unconstitutionally vague standards. See Hanky v. City of Richmond, 532 F.Supp. 1298 (E.D.Va.1982). If the court eventually decides that the Trespass Statute and the Police's conduct with respect to it violate the Com......