South Hill Neighborhood Association v. Romney, 19995.

• Citation: 421 F.2d 454
• Decision Date: 06 April 1970
• Docket Number: No. 19995.,19995.
• Parties: SOUTH HILL NEIGHBORHOOD ASSOCIATION, Inc., a nonprofit incorporated association of the Commonwealth of Kentucky; the Bluegrass Trust for Historic Preservation, Inc., a nonprofit incorporated association of the Commonwealth of Kentucky; Curtis Harrison; Mrs. Stathis Kafoglis; Mr. & Mrs. W. T. Dennis; on behalf of themselves and all other United States or Kentucky citizens, taxpayers, property owners, or historic preservation groups and persons similarly situated, Appellants, v. George ROMNEY, Secretary of the United States Department of Housing and Urban Development, et al., Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

421 F.2d 454 (1969)

SOUTH HILL NEIGHBORHOOD ASSOCIATION, Inc., a nonprofit incorporated association of the Commonwealth of Kentucky; the Bluegrass Trust for Historic Preservation, Inc., a nonprofit incorporated association of the Commonwealth of Kentucky; Curtis Harrison; Mrs. Stathis Kafoglis; Mr. & Mrs. W. T. Dennis; on behalf of themselves and all other United States or Kentucky citizens, taxpayers, property owners, or historic preservation groups and persons similarly situated, Appellants, v. George ROMNEY, Secretary of the United States Department of Housing and Urban Development, et al., Appellees.

No. 19995.

United States Court of Appeals Sixth Circuit.

November 24, 1969.

Certiorari Denied April 6, 1970.

Eugene F. Mooney, Jr., Lexington, Ky., for appellants on motion for injunction.

J. Montjoy Trimble, C. Thomas Greene, Kincaid, Wilson, Schaeffer, Trimble & Hembree, Lexington, Ky., for appellees.

Urban Renewal and Community Development Agency of the City of Lexington, A Municipal Corporation, Robert E. Featherston, William R. Embry, Byron Romanowitz, D. C. Noble, H. J. Hagler, Jennie Bryant, The City of Lexington, A

Municipal Corporation, Charles Wylie, Mayor, The Board of City Commissioners, on motion for order denying injunctive relief.

A. Gene Oliver, Strother, Oliver & Strother, A. B. Rouse, Jr., Fowler, Rouse, Measle & Bell, Richard Smith, Acting City Manager and Corp. Counsel, George Cline, U. S. Atty., Lexington, Ky., for appellees.

Before PHILLIPS, Chief Judge, and PECK and COMBS, Circuit Judges.

Certiorari Denied April 6, 1970. See 90 S.Ct. 1261.

PER CURIAM.

The subject matter of this action, which has come on for consideration by this panel at the direction of the Chief Judge, has been the core of a controversy which has seen the parties at odds in both administrative and judicial proceedings. The latter have included an action in the courts of the Commonwealth of Kentucky with review by its Court of Appeals, sitting en banc, with negative results to the plaintiffs, and an action with a similar conclusion in the District Court, from which the present appeal was perfected.

The ultimate aim of the plaintiffs is the protection from demolition of fourteen buildings, claimed to be of historic significance, which stand in an area designated for improvement under the Urban Renewal Plan of the City of Lexington, Kentucky, all as appearing in detail in the documents before us, as will be later herein commented upon.

The matter is before this Court for consideration of certain motions, the first of which is the plaintiffs-appellants' Motion for Injunction Pending Appeal. Subsequent motions include defendants-appellees' Motion to Require Plaintiffs to File Bond, which will not herein be considered for reasons which will be later apparent, and the motion of certain appellees for an order denying injunctive relief pending appeal. We choose to and will consider the latter motion as a motion to affirm the judgment of the District Court and as having been filed under the provisions of Rule 8(b) of the Rules of this Court.^* The propriety of such consideration as well as the fact that appellants have been apprised of such nature of the motion will readily appear from Branch (2) of the motion and from the conclusion of the memorandum in support thereof wherein "it is respectfully concluded that this court should deny the injunctive relief requested by the Appellants and affirm the Order of the District Court * * *." (Emphasis supplied.) Responsive to our requests, counsel have with expedition and obvious diligence favored us with exhaustive briefs which have been most helpful in acquainting the Court with the facts and offering citations to applicable legal principles. Without implying criticism but rather to illustrate the breadth of the factual presentation before us, we observe that the briefs, perhaps particularly those of the appellants, go occasionally outside the record, and offer averments not otherwise evidenced. To the extent that they are germane to our consideration, however, all uncontroverted representations have been taken into account.

We thus note the contention of the appellees in the motion we consider as one to affirm to the effect that "unless this appeal is fully and finally disposed of prior to November 28, 1969, the Urban Renewal Plan of the City of Lexington, Kentucky, will be placed in grave jeopardy and probably destroyed."

The Order from which this appeal was perfected was entered by Judge Mac Swinford in the United States District Court for the Eastern District of Kentucky, and was accompanied by an exhaustive Memorandum. Rather than restate, paraphrase or extensively quote from that Memorandum, due to the exigencies of time urged upon us by all parties, we attach Judge Swinford's Memorandum hereto as Appendix A. In addition to the authorities cited in that memorandum, reference is made to this Court's opinion in Moist v. Belk, 380 F.2d 721, cert. denied, 389 U.S. 960, 88 S.Ct. 338, 19 L.Ed.2d 369 (1967). It is here determined that the District Court properly dissolved the Temporary Restraining Order previously entered by it, overruled the plaintiffs' Motion for a Temporary Injunction and sustained the defendants' Motion to Dismiss and dismissed the complaint as amended, and it is further here determined that it is manifest that the questions on which the decision of the cause depends are so unsubstantial as not to need further argument, and that therefore the motion to affirm is well taken and should be sustained.

The judgment of the District Court is affirmed.

APPENDIX A

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY LEXINGTON

NO. 2080 SOUTH HILL NEIGHBORHOOD ASSOCIATION INC., ET AL PLAINTIFFS v GEORGE ROMNEY, ET AL DEFENDANTS MEMORANDUM Filed 11-14-69

Plaintiffs in this action allege that George Romney, Secretary of United States Department of Housing and Urban Development, failed to notify the Advisory Council on Historic Preservation of the proposed demolition of buildings registered pursuant to the National Historic Preservation Act. 16 U.S.C. § 470.

This case is before the court on plaintiffs' motion for a temporary injunction and defendants' motions to dismiss the complaint. A full disclosure and discussion of the parties and facts which led to this controversy are imperative to a ruling on these motions.

The parties to this action include: Plaintiffs (1) South Hill Neighborhood Association, Inc. (South Hill), a non-profit Kentucky corporation having as one of its purposes the preservation of historical buildings; (2) The Bluegrass Trust for Historic Preservation, Inc. (Bluegrass Trust), a non-profit Kentucky corporation having as one of its purposes the preservation of historical buildings; (3) Curtis Harrison, a citizen, taxpayer and President of South Hill; (4) Mrs. Stathis Kafoglis, a citizen, taxpayer and owner of property within the area in controversy; (5) Mr. and Mrs. W. T. Dennis, citizens, taxpayers and owners of property within the area in controversy; and Defendants (1) George Romney, Secretary of the United States Department of Housing and Urban Development (HUD); (2) The City of Lexington, Kentucky, a municipal corporation, duly organized and existing under the laws of the Commonwealth of Kentucky; (3) Honorable Charles Wylie, Mayor of Lexington, Kentucky; (4) The Board of City Commissioners of the City of Lexington, authorized city board for the City of Lexington; (5) Joseph Graves, Harry Sykes, Thomas Fugazzi, duly elected and qualified members of the Lexington Board of City Commissioners; (6) Urban Renewal and Community Development Agency of the City of Lexington (Lexington Urban Renewal Agency), a municipal corporation organized under and existing by virtue of the laws of the Commonwealth of Kentucky; (7) Robert E. Featherston, William R. Embry, Byron Romanowitz, D. C. Noble and H. J. Hagler, duly appointed, qualified and acting members of the Lexington Urban Renewal Agency; (8) Jennie Bryant, director of the Lexington Urban Renewal Agency; (9) Citizens Union National Bank and Trust Company, Inc. (Citizens Union Bank), a national banking corporation organized under and existing by virtue of the laws of the United States of America; (10) Norwood Construction Company, Inc. (Norwood Construction Co.), a Kentucky corporation; and (11) J. Norwood Hodge, President of Norwood Construction Co.

The facts out of which this controversy arises are as follows. The Lexington Urban Renewal Agency was formed in 1959 and has continued in existence to date. On April 1, 1965, the Board of City Commissioners of the City of Lexington adopted an ordinance describing area in downtown Lexington to be appropriate for an urban renewal project. An urban renewal plan was promulgated for this area and said plan was approved by the Planning and Zoning Commission of Lexington-Fayette County at a public hearing on July 22, 1965. Notice of this plan was given to each property owner in the area bounded on the north by Main Street, on the west by Patterson Street, on the south by High Street, and on the east by Shreve Avenue. This includes the area in controversy. The method of financing costs for this project was authorized by the Kentucky Court of Appeals on October 1, 1965. See Watkins v. Fugazzi, 394 S.W.2d 594 (Ky.1965).

The Lexington Urban Renewal Agency's plan, Ky. R-63, was submitted to the federal authorities on December 30, 1965. On June 7, 1966, HUD approved the December, 1965, plan and authorized federal funding under a Loan and Capital Grant Contract. This plan provided that all land in the project area would be used for commercial purposes and that all land acquired would be cleared of all improvements. On October 19, 1967, the City of Lexington sold $3,500,000.00 of revenue bonds to finance its portion of the cost of the urban renewal project.

On July 22, 1968, the plan for the Lexington urban renewal project, R-63, was amended....