Trager v. Peabody Redevelopment Authority, Civ. A. No. 72-3919-C.

• Decision Date: 06 December 1973
• Docket Number: Civ. A. No. 72-3919-C.
• Citation: Trager v. Peabody Redevelopment Authority, 367 F.Supp. 1000 (D. Mass. 1973)
• Parties: D. Richard TRAGER et al., Plaintiffs, v. PEABODY REDEVELOPMENT AUTHORITY, Defendant.
• Court: U.S. District Court — District of Massachusetts

367 F. Supp. 1000

D. Richard TRAGER et al., Plaintiffs, v.PEABODY REDEVELOPMENT AUTHORITY, Defendant.

Civ. A. No. 72-3919-C.

United States District Court, D. Massachusetts.

December 6, 1973.

John T. Ronan, Salem, Mass., for plaintiff.

Charles J. Speleotis, Swampscott, Mass., for defendant.

Andrew M. Wolfe, Asst. Atty. Gen., Boston, Mass., Amicus Curiae.

Before CAMPBELL, Circuit Judge, and CAFFREY and JULIAN, District Judges.

OPINION

CAFFREY, Chief District Judge.

This is a civil action in which plaintiffs seek to enjoin defendant from taking a parcel of real property, owned in common by plaintiffs, for urban renewal until plaintiffs are provided with notice of and an opportunity to be heard in a proceeding to determine if the area which includes plaintiffs' property is blighted.Plaintiffs contend that a prior determination of blight by the Peabody City Council pursuant to M.G. L. ch. 121 § 26ZZ was in violation of the Fifth and Fourteenth Amendments to the Constitution because it was a deprivation of property without notice or opportunity to be heard.Jurisdiction is alleged under 42 U.S.C.A. § 1983and28 U.S.C.A. § 1331.Because an injunction restraining the enforcement of state statute on grounds of unconstitutionality is sought, a three-judge district court was convened under 28 U.S.C.A. §§ 2281and2284.

Plaintiffs are citizens of Massachusetts and residents of Middlesex County.Defendant Peabody Redevelopment Authority (Authority) is a public body, corporate and politic, created pursuant to M.G.L. ch. 121B § 3(formerly ch. 121 § 26K) for purposes of clearing substandard, decadent or blighted areas in a program of urban renewal.Plaintiffs owned about 29 acres of vacant land in Peabody.

In March 1969, the Authority formulated a plan for a state-aided urban renewal project to be known as the Centennial Industrial Park.The plan encompassed more than 300 acres of land and included plaintiffs' property.Pursuant to M.G.L., ch. 121 § 26ZZ(now ch. 121B § 48), a hearing on the plan was held before the Peabody City Council on June 26, 1969.Notice of the hearing was published in two Essex County newspapers on June 13 and 20, 1969, in compliance with ch. 121 § 26ZZ.Plaintiff Trager had conversations with the Executive Director of the Authority concerning the project prior to the hearing and immediately thereafter and, in fact, has been in constant communication with the Executive Director to the present time.Plaintiff Cross was also in contact with the Executive Director in the time period after the June City Council hearing and was informed of the Authority's activities, although he appears not to have had notice prior to the hearing.(Affidavit of Allen J. Perakis, Executive Director, Peabody Redevelopment Authority, ¶ 8.)In August 1969, the project was approved by the Authority, the City Council and the Mayor of Peabody.Meanwhile, in 1969, in an unrelated proceeding, the Commonwealth of Massachusetts expressed its intent to take plaintiffs' land for a proposed highway.

On March 31, 1970, the Peabody City Council approved the bond order for the financing of the project.After a number of voters objected to the bond order, a special election was held in the City of Peabody, and the bond order was approved by the voters in June of 1970.Several taxpayers' suits objecting to the project and the special election were filed in the fall of 1970 in the Essex Superior Court.Demurrers to the claims were filed by the defendant and were allowed.On appeal to the Supreme Judicial Court, the same questions were raised as are involved in the instant case.In May 1972, the Supreme Judicial Court ruled that the allegations in the complaint were vague and conclusory and sustained the demurrers without reaching the merits of the questions presented.Saraceno v. City of Peabody, 1972 Mass.Adv.Sh. 905, 906-907, 282 N. E.2d 389.Argument at the hearing before this three-judge court indicated that plaintiffs herein were cognizant of the state court proceedings and the issues presented therein.

In August 1972, the Commonwealth went forward with the aforementioned highway taking.However, only about 24 of plaintiffs' 29 acres were appropriated, leaving the plaintiffs with about 5 acres of "blighted" land in the proposed project area.There is presently an action in Essex Superior Court concerning the amount of damages due to plaintiffs on account of the Commonwealth's taking.Plaintiffs filed the instant suit in December 1972.

Governmental action short of actual acquisition of property may be a constructive taking or an inverse condemnation if such action deprives the property owner of all or most of his interest in the subject matter.Griggs v. Allegheny County, 369 U.S. 84, 90, 82 S. Ct. 531, 7 L.Ed.2d 585(1962);United States v. Kansas City Insurance Co., 339 U.S. 799, 810, 70 S.Ct. 885, 94 L.Ed. 1277(1950);United States v. General Motors Corp., 323 U.S. 373, 378, 65 S.Ct. 357, 89 L.Ed. 311(1945).However, the mere determination by a governmental authority that a particular area of real estate is "blighted" as an initial step in an urban renewal project is not a constructive taking.This is so even though the determination of blight has an adverse effect on the value of the property.The initial steps in any condemnation proceeding, although such steps diminish the value of the property concerned, themselves do not require compensation.Danforth v. United States, 308 U.S. 271, 285, 60 S.Ct. 231, 84 L.Ed. 240(1939);Woodland Market Realty Co. v. City of Cleveland, 426 F.2d 955, 958(6 Cir.1970);23 Tracts of Land v. United States, 177 F.2d 967, 969-970(6 Cir.1949);Town of Hingham v. United States, 161 F. 295, 299-300(1 Cir.1908);Manson v. Williams, 153 F. 520, 525(1 Cir.1907);Government of the Virgin Islands v. 50.05 Acres of Land, 185 F.Supp. 495, 498(D.V.I.1960).

The procedural due process requirements of notice and hearing attach themselves wherever there is need for an adjudicative hearing, i. e., when an individual or a small number of persons suffer a particular loss under circumstances peculiar to each...