Starr v. Nashville Housing Authority, Civ. No. 1804.

• Decision Date: 08 October 1956
• Docket Number: Civ. No. 1804.
• Parties: Alfred STARR et al., Plaintiffs, v. The NASHVILLE HOUSING AUTHORITY et al., Defendants.
• Court: U.S. District Court — Middle District of Tennessee

145 F. Supp. 498

Alfred STARR et al., Plaintiffs, v. The NASHVILLE HOUSING AUTHORITY et al., Defendants.

Civ. No. 1804.

United States District Court M. D. Tennessee, Nashville Division.

October 8, 1956.

Waller, Davis & Lansden, Barksdale, Hudgins & Osborn, Elkin Garfinkle, Nashville, Tenn., and Sher, Oppenheimer & Harris, Attys., Washington, D. C., for plaintiff.

Williams, Harwell, Howser & Thomas, Robert Alexander, Hooker, Keeble, Dodson & Harris, and Fred Elledge, Jr., U. S. Atty., Nashville, Tenn., for defendant.

Before MARTIN, Circuit Judge, and DAVIES and WILLIAM E. MILLER, District Judges.

PER CURIAM.

The cause was submitted upon the pleadings, evidence, exhibits, and argument of counsel for plaintiffs and defendants, and, after due consideration thereof, the Court enters its findings of fact and conclusions of law, as follows:

Findings of Fact

1. Plaintiffs Alfred Starr, Milton Starr, and Michael Starr, individually and as Trustees of the estate of Jacob Starr, deceased, own the land and building at 423 Fourth Avenue, North, in the City of Nashville, known as the Bijou Theatre property. This theatre is located in the downtown business section of Nashville, in an area in which businesses conducted by Negroes predominate, and is operated as a motion picture theatre for Negro patrons. A part of the building is used as offices for the officers and employees of the Bijou Amusement Company, which operates other similar theatres throughout the southern states.

2. The plaintiff H. G. Hill Realty Company, a Tennessee corporation, owns the land and building at the northeast corner of Charlotte Avenue and Fifth Avenue in the City of Nashville, including a one-story building on the corner. The store building was formerly used as a grocery store and is now leased to Montgomery Ward & Company, which operates a retail store for the sale of automotive supplies in said building. This plaintiff also owns parking lots adjacent to said building on both the east and north, one of which is used for patrons of the Montgomery Ward store, and the other as a commercial parking lot. This property is in the same city block with the property of the plaintiffs Alfred Starr, et al., above described, both properties being located in the city block bounded on the south by Charlotte Avenue, on the east by Fourth Avenue, North, on the west by Fifth Avenue, North, and on the north by Capitol Avenue.

3. Defendant, Nashville Housing Authority, is a public body and body corporate and politic of the State of Tennessee, with situs in this district. The Board of Commissioners of said Nashville Housing Authority, consisting of Walter J. Diehl, Chairman, and four other citizens of Nashville, met on April 17, 1950, and adopted resolutions whereby an application was made to defendant, Housing and Home Finance Agency, an instrumentality of the United States Government, for what was referred to as a "Final Advance of Funds", for plans and other activities in preparation of projects to be assisted under Title I of the Housing Act of 1949, 42 U.S.C.A. § 1451 et seq. The minutes recited that this application had been prepared under the direction of Mr. Dale Hawkins and Mr. John Acuff. Thereafter, in July, 1950, said Nashville Housing Authority entered into a contract with the defendant, City of Nashville, for collaboration on a project known as the Capitol Hill Redevelopment Project. The boundaries of said proposed project, as described in the application to Housing and Home Finance Agency and in the contract with the City of Nashville, excluded the Morris Memorial Building at the corner of Fourth Avenue, North and Cedar Street, and excluded property to the west thereof, fronting on Charlotte Avenue (which is an extension of Cedar Street) between Fourth Avenue, North and Fifth Avenue, North, including the property of the plaintiff, H. G. Hill Realty Company. The reason given in the application for excluding the buildings fronting on Charlotte Avenue between Fourth Avenue, North and Fifth Avenue, North was stated to be that they were "predominantly commercial in character, although there are families living on the second and third floors of some of the buildings, and the exclusion of these buildings will not prevent the redevelopment of the area by a logical plan".

4. The application for Final Advance of Funds was granted by Housing and Home Finance Agency, and thereafter, Nashville Housing Authority adopted "The Redevelopment Plan for the Capitol Hill Redevelopment Project UR Tenn. 2-1," dated March, 1952. The project area, as described in this Plan, continued to exclude the Morris Memorial Building, but included the entire block bounded on the south by Charlotte Avenue, on the east by Fourth Avenue, North, on the west by Fifth Avenue, North, and on the north by Capitol Avenue. The Redevelopment Plan was approved by the City Council of Nashville on April 29, 1952, after a public hearing as required by law. 42 U.S.C.A. § 1455; Tennessee Code Supp. 1950, Sec. 3647.29P, Tenn.Code Annotated, Sec. 13-815.

5. The Bijou Theatre building was erected in 1904; was designed by the same architect who designed the Metropolitan Opera House in New York; and was built of what is known as ordinary construction. The exterior walls are masonry; the first floor is concrete laid directly on the ground; and floors and balconies are of wood construction. Approximately 75 per cent of the buildings in downtown Nashville are of this type of construction. The Bijou Theatre is in excellent structural condition, having been well maintained over the years. It is not unsightly, unsafe, or unsanitary.

6. The H. G. Hill Realty Company building is a brick building, which was extensively remodeled in the past few years, and is a sound, substantial structure throughout. It is not unsightly, unsafe, or unsanitary.

7. Tennessee law requires that a Redevelopment Plan be "* * * sufficiently complete * * * (2) To indicate proposed land uses and building requirements in the area". Supplement to Code of Tennessee 1950, Sec. 3727.29P, Tenn.Code Annotated, Sec. 13-815. The Redevelopment Plan, however, designates no specific land uses for Area A, in which is located the city block hereinbefore described, except that no residential or industrial buildings may be located therein. The Plan provides that the "only permitted uses" shall be for "office and professional buildings, retail and department stores, banks, theaters, restaurants, club houses, cultural and educational facilities, bus passenger facilities, telephone central stations, post offices, hotels and commercial apartment hotels, and other uses of a similar nature, as well as off-street parking and loading facilities (including parking garages, underground or within the buildings to which they are incidental)." (Redevelopment Plan, p. 12.) No building requirements in the area are indicated in the Plan.

8. The Plan states that Nashville Housing Authority "shall specifically reserve the right to review and approve the redeveloper's plans and specifications with respect to the use of the land, the location, height, bulk and land coverage of the proposed building or buildings to be provided by the redeveloper, and with respect further to the provision of the off-street parking and off-street loading facilities". (Redevelopment Plan, p. 13.) However, the Plan itself gives no indication as to what the requirements will be in this respect.

9. Under date of September 26, 1952, Nashville Housing Authority entered into a contract with defendant, Housing and Home Finance Agency, whereby the latter agreed to make certain loans and grants to Nashville Housing Authority for carrying out the project. Sec. 201(3) of said contract provides that Nashville Housing Authority may not make any changes in the basic elements of the Redevelopment Plan "except with the prior written consent of the Government"; Sec. 201(6) provides that the Authority shall not acquire or contract to acquire any land in the project area at prices, or subject to covenants, restrictions, terms or conditions, "which shall not have been concurred in by the Administrator"; Sec. 201(7) provides "that the Authority shall not institute eminent domain proceedings without the concurrence of the Administrator"; Sec. 201(8) provides that no land shall be sold or leased at prices or upon or...