Whitmier & Ferris Co., Inc. v. City of Buffalo

• Decision Date: 09 November 1982
• Citation: 89 A.D.2d 447,455 N.Y.S.2d 454
• Court: New York Supreme Court — Appellate Division
• Parties: WHITMIER & FERRIS CO., INC., Appellant, v. The CITY OF BUFFALO and The City of Buffalo Urban Renewal Agency, Respondents.

Page 454

455 N.Y.S.2d 454

89 A.D.2d 447

WHITMIER & FERRIS CO., INC., Appellant, v. The CITY OF BUFFALO and The City of Buffalo Urban Renewal Agency, Respondents.

Supreme Court, Appellate Division Fourth Department.

Nov. 9, 1982.

Jaeckle, Fleischmann & Mugel, Buffalo (Daniel McDonald, Buffalo, of counsel), for appellant.

Joseph P. McNamara, Buffalo (Anthony Vaccaro, Buffalo, of counsel), for respondents.

Before DILLON, P.J., and CALLAHAN, DENMAN, BOOMER and SCHNEPP, JJ.

DENMAN, Justice.

We must determine whether Congress, in enacting the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (URA) (U.S. Code, tit. 42), intended to provide a private right of action for redress of state violations of the federal land acquisition policies provided therein. Examination of the legislative history and applicable Federal law leads us to conclude that a limited right of action is available under section 302 of the Act (U.S. Code, tit. 42, § 4652) but that remedy is limited to actions arising under the Federal Administrative Procedure Act and does not afford plaintiff herein a remedy against the City of Buffalo.

Since 1937 plaintiff Whitmier & Ferris has by written agreement leased the property at 2304-2368 Niagara Street in the City of Buffalo for the purpose of affixing and maintaining certain advertising structures, i.e., billboards, on the premises. The City of Buffalo acquired title to the subject property in August, 1976 under a federally assisted community development block grant program. Shortly after the City took title, the former owner notified Whitmier & Ferris of the sale of the property to the City in a letter dated August 31, 1976. The letter also advised Whitmier & Ferris that the City desired to have its advertising signs removed from the premises. Subsequently, on February 7, 1977, the City notified Whitmier & Ferris that it was the owner of the Niagara Street property and requested Whitmier & Ferris to remove its outdoor advertising structures at its own expense within a reasonable time. Whitmier & Ferris took no action to remove the billboards and on March 30, 1977 the City demolished the billboard structures without plaintiff's consent.

Plaintiff commenced this action seeking damages against the City for removal and destruction of its advertising signs asserting separate causes of action for trespass, forcible entry and detainer, inverse condemnation, and a federal statutory cause of action under section 302 of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (U.S. Code, tit. 42, § 4652). The action was commenced on November 22, 1977 and issue was joined by service of the City's answer and counterclaim for trespass on December 14, 1977. For reasons which do not appear, Whitmier & Ferris' reply was not served upon the City until August 25, 1981, over four years after the action was initially commenced. Shortly thereafter plaintiff moved for partial summary judgment on its federal cause of action. Special Term, after reviewing applicable federal law, held that title III of the Act (U.S. Code, tit. 42, § 4651 et seq.) was not judicially enforceable, denied plaintiff's motion for summary judgment and sua sponte granted summary judgment in favor of the City, thereby dismissing plaintiff's statutory cause of action under the Act.

We are in agreement with the conclusion reached by Special Term that plaintiff's motion for summary judgment on its federal cause of action should be denied but arrive at this conclusion for reasons different from those stated at Special Term. Initially, we note that the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (U.S. Code, tit. 42) and the numerous regulatory enactments which are its progeny, present a very complex legislative scheme to provide uniform standards for payment of acquisition costs and relocation benefits to former property owners of land taken by the states and other political subdivisions pursuant to federally funded urban redevelopment programs. Because of the intricacies of the Federal statute and the extensive debate which preceded its enactment, we approach with caution our task of interpreting the legislative history. Thus viewed, we believe that, since the Act itself and its legislative history is silent regarding whether a private right of action against a state or its political subdivisions was intended, we should not presume the existence of such a right.

This is the third occasion on which we have been asked to interpret the rights of individual property owners under that Act. In City of Buffalo v. Clement Co., 45 A.D.2d 620, 360 N.Y.S.2d 362, app. dsmd. 36 N.Y.2d 713, 366 N.Y.S.2d 1029, 324 N.E.2d 562, we declined to construe section 4654 of the Act as authority to award attorney's fees to plaintiffs who prevailed in a condemnation action brought in state court. Although the City failed to abide by the provisions of section 4654 which required reimbursement of former property owners' litigation expenses, including attorney's fees, we held that that was solely a matter between the City and the Federal government and beyond the scope of that litigation. We noted also that "section 4655 prescribes conduct between the Federal agencies and State agencies in condemnation projects involving Federal moneys. It makes no reference to actions pending in State courts" (City of Buffalo v. Clement Co., supra, 45 A.D.2d p. 624, 360 N.Y.S.2d 362).

In Matter of O'Brien v. City of Syracuse, 54 A.D.2d 186, 388 N.Y.S.2d 866 we declined to afford plaintiff the status of third-party beneficia to a loan and grant between a local urban renewal agency and the Department of Housing and Urban Development so as to enable plaintiff to enforce the provisions of the Act. We noted there that the weight of federal decisional authority holds that section 301 of the Act, upon which plaintiff relied, was not judicially enforceable and that in the absence of any authority to the contrary we were persuaded "not to forge a new dimension of federal contract law with unknown consequences upon the operation of urban renewal projects" (Matter of O'Brien v. City of Syracuse, supra, 54 A.D.2d pp. 190-191, 388 N.Y.S.2d 866).

Since the present action arises under section 302 of the Act, our holding in O'Brien is not inconsistent with our conclusion here that a limited right of judicial review is afforded under section 302. Subdivision b of section 302 provides that any structure located on real property taken under a federally funded project is deemed to be part of the real property acquired for the purpose of determining just compensation to be paid under the Act....