Kelly v. Romney, Civ. A. No. 3691.

• Decision Date: 25 February 1970
• Docket Number: Civ. A. No. 3691.
• Citation: 316 F. Supp. 840
• Parties: Leo L. KELLY, John and Emma Byrd, Ira Lee and Ophelia Harper, Walter M. and Katie M. Byrd, on behalf of themselves and all others similarly situated, Plaintiffs, v. George W. ROMNEY, Secretary of the United States Department of Housing and Urban Development, Frances D. Fisher, Regional Administrator, Region IV Renewal Section, U. S. Department of Housing and Urban Development, Dave Hall, as Mayor and in his representative capacity as City Commissioner of the City of Dayton, Ohio, Graham W. Watt, City Manager of the City of Dayton, Ohio, Dayton View Neighborhood Council, Robert A. Flynn, Director, Plan Board, City of Dayton, Ohio, Jackson J. Perry, Director of Welfare, City of Dayton, Ohio, Joseph D. Wine, Dayton View Stabilization Director, City of Dayton, Ohio, King Wrecking Company, and City of Dayton, Ohio, a Municipal Corporation, Defendants.
• Court: U.S. District Court — Southern District of Ohio

316 F. Supp. 840

Leo L. KELLY, John and Emma Byrd, Ira Lee and Ophelia Harper, Walter M. and Katie M. Byrd, on behalf of themselves and all others similarly situated, Plaintiffs, v. George W. ROMNEY, Secretary of the United States Department of Housing and Urban Development, Frances D. Fisher, Regional Administrator, Region IV Renewal Section, U. S. Department of Housing and Urban Development, Dave Hall, as Mayor and in his representative capacity as City Commissioner of the City of Dayton, Ohio, Graham W. Watt, City Manager of the City of Dayton, Ohio, Dayton View Neighborhood Council, Robert A. Flynn, Director, Plan Board, City of Dayton, Ohio, Jackson J. Perry, Director of Welfare, City of Dayton, Ohio, Joseph D. Wine, Dayton View Stabilization Director, City of Dayton, Ohio, King Wrecking Company, and City of Dayton, Ohio, a Municipal Corporation, Defendants.

Civ. A. No. 3691.

United States District Court, S. D. Ohio, W. D.

February 25, 1970.

James Rice, Dayton, Ohio, William Davis, Columbus, Ohio, for plaintiffs.

Robert Steinberg, Asst. U. S. Atty., Dayton, Ohio, for defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW JUDGMENT

WEINMAN, Chief Judge.

In this action plaintiffs seek injunctive relief restraining the City of Dayton from demolishing and purchasing more property for an "open-space" park project encompassing thirty-two separate parcels of land which is funded in part by the United States Department of Housing and Urban Development (hereinafter sometimes referred to as H.U.D.). At the present time the City of Dayton has purchased nineteen of the thirty-two separate parcels located in the proposed park site. The plaintiffs are Negro owners of property in the proposed park site which has not as yet been acquired by the City. The named defendants are George W. Romney, Secretary of the United States Department of Housing and Urban Development, Frances D. Fisher, Regional Administrator, for H.U.D. (hereinafter referred to as the federal defendants), Dave Hall, Mayor of the City of Dayton, Graham W. Watt, City Manager of the City of Dayton, Dayton View Neighborhood Council, Robert A. Flynn, Director of the City of Dayton Plan Board, Jackson J. Perry, Director of the Department of Welfare of the City of Dayton, Joseph D. Wine, Dayton View Stabilization Director, King Wrecking Company and the City of Dayton, Ohio (hereinafter referred to as the local defendants). In their complaint plaintiffs on behalf of themselves and others similarly situated allege five claims:

1. That the local defendants by appropriating property in the park site with knowledge that there is private housing discrimination against Negroes have deprived plaintiffs and their class of equal protection of law guaranteed by the Fourteenth Amendment.

2. That the local defendants have failed to provide a feasible plan for relocating individuals displaced by the project as required by Section 1455(c), Title 42 United States Code.

3. That the federal defendants have violated federal guidelines implementing Sections 1441-1460 and Section 3534, Title 42 United States Code.

4. That the local defendants conspired to interfere with plaintiffs' civil rights in violation of Section 1985(3) of Title 42 United States Code.

5. That the failure of the local defendants to include church property in the park project establishes a religion in violation of the First Amendment.

Plaintiffs pray that the defendants be permanently enjoined from:

1. authorizing the purchase of more properties in the Park site.

2. purchase and acquisition of more properties in the proposed Park site.

3. further authorization of funds for demolition of properties in the proposed Park site.

4. the demolition of properties in the proposed Park site.

That this Court issue a permanent mandatory injunction requiring the defendants to comply with the provisions of 42 U.S.C., Section 1455(c).

This action was tried on the merits before the Court without a jury and the Court having considered the pleadings, the evidence and having observed the behavior of the witnesses on the stand, their manner of testifying and the probability of their testimony, makes the following Findings of Fact and Conclusions of Law:

FINDINGS OF FACT

1. The City of Dayton developed a Dayton View Park plan for an "open-space" land project encompassing an area bounded by Ferguson Avenue on the West, Broadway Street on the East, Superior Avenue on the North and Edgewood Avenue extending on the South including thirty-two separate parcels of land. The parcels to be purchased by the City are owned by both Whites and Negroes.

2. The church located on the Southeast corner of Superior Avenue and Ferguson Avenue is not and never was included in the plan for the park development.

3. After hearing objections from interested citizens, the City Commission for the City of Dayton, Ohio approved the park plan.

4. The plaintiffs are Negro owners of property in the park area which is scheduled for appropriation under the project. None of the parcels owned by plaintiffs have been acquired by the City of Dayton. At the time of the filing of this action the City of Dayton had acquired nineteen of the thirty-two parcels and had let a contract to defendant King Wrecking Company for the demolition of nine structures located on nine separate parcels and two structures have been demolished.

5. The City of Dayton made an application for a federal grant from the United States Department of Housing and Urban Development (H.U.D.) under the provisions of the Housing Act of 1961 as amended, 42 U.S.C. § 1500 et seq. to help finance the "open-space" land project.

6. The application of the City of Dayton was approved by H.U.D. and on June 5, 1968 the City of Dayton and H. U.D. entered into a contract providing for a federal "open-space" land grant of 50% of the cost of the project or $284,382.00 whichever is less and a relocation grant of $38,000.00.

7. Under the contract the City of Dayton is to acquire a fee simple interest in the land described in the park plan, demolish existing structures, clear the site, and retain the site, as developed, for permanent open-space purposes, namely for park and recreational purposes, conservation of land and other natural resources or historic or scenic purposes.

8. The Department of Community Development of the City of Dayton maintains a Relocation Office which offers relocation assistance to persons who are displaced by the park project. The Relocation Office employs Mr. Dave Altick as relocation supervisor and three relocation counselors.

9. The Relocation Office operated by the City offers assistance to displacees in finding safe, sanitary and decent housing and processes and pays claims for moving expenses, rent supplement and replacement housing payments.

10. With respect to relocation the relocation counselors, at the beginning of a project, take a survey of the project by interviewing the residents to learn about their relocation needs and where the residents desire to relocate. The residents are also informed of their right to receive moving expenses, rent supplements and replacement housing payments.

11. If upon the initial survey a resident indicates that he desires to utilize the City's relocation service, the counselors assist the displacee in finding safe, sanitary and decent housing or gets them public housing.

12. If a resident does not desire to move immediately the relocation counselors conduct a second interview after the property has been acquired to determine whether the resident's relocation needs have changed. Upon request of the resident for relocation assistance, the counselors assist the resident in finding safe, sanitary and decent housing.

13. In order to keep informed as to the available housing in the Dayton area, the relocation office maintains a file of sales and housing within the City of Dayton which includes the Multiple Listing Bureau from Real Estate Boards and a list of V.A. and F.H.A. acquired property for sale.

14. The relocation counselors attempt to relocate displaced residents into an area desired by the residents but do not encourage displacees to locate in a particular area. The relocation counselors have no power to compel a displacee to relocate in a particular area.

15. The relocation counselors have testified in this case that they have been able to find safe, sanitary and decent housing for persons displaced by the park project and other projects who request relocation assistance.

16. In addition to relocation assistance, the City's Relocation Office processes and pays claims for moving expenses, rent supplements (a payment to elderly individuals or families up to a maximum of $500.00 a year who are unable to relocate in public housing), and replacement housing payments (a supplement to homeowners up to $5,000.00 to compensate the owner for the difference between the price paid by the City for his home and the price of a replacement home that would satisfy the displacee's needs).

17. In a statement issued on April 19, 1968 H.U.D. indicated that it was the policy of the department to encourage the utilization of the relocation process as a means for expanding the housing choices available to minority-group families and individuals. The Relocation Office for the City of Dayton instructs its counselors to inform displacees that they have a right to purchase a home where they desire to reside and that the Relocation Office will help them enforce that right. In order to fulfill the H.U.D. policy of equal opportunity in housing the Relocation Office has obtained the assistance of the Human Relations Council of the City of Dayton, a local agency which investigates complaints of housing discrimination and works for the solution of such complaints.

18. None of the plaintiffs to this action have sought relocation assistance from the City of Dayton. Plaintiff Kelly has refused to permit city officials to inspect his property for...