Summary
In Lazrow v. Philadelphia Housing Authority, 375 Pa. 586, 101 A.2d 664, an equity action to enjoin the Philadelphia Housing Authority from proceeding with condemnation of a certain tract of land for a low rent public housing project, we held that, in the absence of evidence that the Housing Authority acted arbitrarily or capriciously, its selection of a particular site was not subject to review by this Court.
Summary of this case from Truitt v. Boro. of Ambridge Water AuthOpinion
November 23, 1953.
January 4, 1954.
Housing authorities — Philadelphia Housing Authority — Powers — Right of eminent domain — Housing Authorities Law of May 28, 1937, P. L. 955 — Act of June 23, 1911, P. L. 1123.
1. The Philadelphia Housing Authority has the right of eminent domain under the Housing Authorities Law of May 28, 1937, P. L. 955, § 15; and such right is to be exercised in accordance with the provisions of the Act of June 23, 1911, P. L. 1123, as amended. [589-90]
2. It was Held, in the circumstances, that the Philadelphia Housing Authority did not act capriciously and arbitrarily in selecting a particular site for low-rent public housing purposes. [586-93]
Before STERN, C. J., STEARNE, JONES, CHIDSEY, MUSMANNO and ARNOLD, JJ.
Appeal, No. 271, Jan. T., 1953, from decree of Court of Common Pleas No. 7 of Philadelphia County, Dec. T., 1952, No. 2534, in case of Charles Lazrow v. The Philadelphia Housing Authority. Decree affirmed.
Bill in equity.
The facts are stated in the opinion by LEVINTHAL, J., of the court below as follows:
This is an action in equity seeking to enjoin the defendant, The Philadelphia Housing Authority, from proceeding with its condemnation of a tract of land, known as the Liddonfield Site and owned by the plaintiff, for a low rent public housing project.
It is contended by the plaintiff that The Philadelphia Housing Authority did not have the right of eminent domain, despite the express grant of such right to it by the Housing Authorities Law of May 28, 1937, P. L. 955, and that even if it did have the right of eminent domain The Authority has acted capriciously and arbitrarily in selecting the plaintiff's property rather than another tract of ground for the housing project.
In accordance with a stipulation of counsel, a final hearing was held on January 2, 1953.
Upon consideration of the testimony, the Chancellor makes the following
FINDINGS OF FACT.1. The plaintiff is the registered owner of a tract of land located in the Forty-first Ward of the City of Philadelphia bounded by Torresdale Avenue on the East, Talbot Street on the North, Frankford Avenue on the West and Strahle Street on the South, now known as the Liddonfield Tract or Site.
2. The defendant is The Philadelphia Housing Authority, a public body and a body corporate and politic, organized under the provisions of the Housing Authorities Law of May 28, 1937, P. L. 955.
3. The Philadelphia Housing Authority is granted the right of eminent domain under the Housing Authorities Law of 1937 and is authorized by that Act to exercise its right of eminent domain in the manner established by law for the City of Philadelphia.
4. The Philadelphia Housing Authority held a public hearing in the City of Philadelphia on November 22, 1950, for the purpose of determining the suitability of a part of the tract owned by the plaintiff, known as the Liddonfield Site, for use as a public housing project.
5. The Philadelphia Housing Authority held a series of meetings and conferences with interested citizens and civil groups from the neighborhood of the Liddonfield Site who had expressed opposition to this site for public housing.
6. The City of Philadelphia is the owner of an unused tract of land adjacent to and similar to the Liddonfield Tract on the North of the Liddonfield Tract, which is known as the Camp Happy Tract.
7. The use of the Camp Happy Tract by the City of Philadelphia was abandoned May, 1952.
8. The Philadelphia Housing Authority has a binding agreement with the Federal Government under which Federal Loan Funds will be advanced to the Authority for the construction of the Liddonfield Project and the allocation of these funds will be jeopardized if the Authority is delayed beyond January 15, 1953, in advertising for bids for construction work.
9. The Philadelphia Housing Authority considered the transfer of its Liddonfield Development to the City owned Camp Happy Tract and conferred with the United States Public Housing Authority with reference thereto. Such transfer was found by the defendant to be impracticable because the United States Public Housing Authority insisted that unless bids would go out on the Liddonfield Site project by January 15, 1953, The Federal Housing Authority would not lend money for any development in Philadelphia.
10. The Camp Happy Site was not available to The Philadelphia Housing Authority for use as a public housing site at the time when the Authority was considering the Liddonfield and alternate sites in the area of the Liddonfield Site for public housing purposes; and the Camp Happy Site is not immediately available to the Authority for public housing purposes.
11. On May 26, 1952, after prolonged studies and discussions regarding alternate sites in the Northeast section of Philadelphia as substitutes for Liddonfield Site, The Philadelphia Housing Authority, in the proper exercise of its discretion, formally approved the Liddonfield Site for the construction of a low rent housing project.
DISCUSSION.It is ingeniously argued by the plaintiff that Section 15 of the Act of May 28, 1937, P. L. 955, which purports to confer upon all housing authorities throughout the Commonwealth the right of eminent domain, is ineffectual insofar as The Philadelphia Housing Authority is concerned. That Section provides that the right of eminent domain is to be exercised by the Authority "in the manner provided by law for the exercise of such right by cities and counties, as the case may be, of the same class as the city or county in which such Authority is organized to operate."
It is contended that there is no one precise manner provided by law for the exercise of the right of eminent domain by cities of the first class, that is, Philadelphia, but that, on the contrary, there are in existence a number of varying eminent domain statutes applicable to this city.
We believe there is no merit to this contention. It is clear that the Act of June 23, 1911, P. L. 1123, as amended by the Act of April 28, 1937, P. L. 473, 16 PS 3114, does provide for the manner in which the right of eminent domain is to be exercised in Philadelphia. In Reber's Petition, 235 Pa. 622 (1912), the Supreme Court, in construing the Act of 1911, declared: "The chief purpose of the statute was to provide a competent and efficient piece of machinery, which when once in operation could be made available by any authority having need for its services. Once established, the membership of the Board of Viewers is to be at the service of any Court or Judge who may find it necessary to appoint viewers." See also Commonwealth ex rel. Kelley v. Cantrell et al., 327 Pa. 369, where the Supreme Court judicially reviewed the Act of 1911 as well as the amending Act of April 28, 1937, P. L. 473.
It is true, as pointed out by counsel for the plaintiff, that numerous eminent domain statutes applicable to the City of Philadelphia have been enacted by the Legislature from time to time conferring the power of condemnation for various special purposes. An examination of these statutes discloses that they are not exactly uniform in their respective provisions as to the bond to be filed by the city, the method of instituting the proceedings, the qualification of and the appointment of the Board of View, the time of the meeting, the notice or advertisement, the report of the Board, the time for appeal, the payment of costs, and similar details. Many of these statutes are silent as to these particular items of practice, whereas some of them provide that the procedure is to be "as in other cases of similar character as now provided for by law." (See Act of July 20, 1917, P. L. 1143, 53 PS 1723, relating to Libraries.)
It is also true that the Act of June 23, 1911, P. L. 1123, as amended by the Act of April 28, 1937, P. L. 473, 16 PS 3114, provides the method of selecting the Board of View in all the counties including Philadelphia, and does not specifically provide for the precise procedure to be followed in assessing damages or in fixing the bond or the many other incidents of practice in the exercise of the right of eminent domain.
In our opinion, however, it is perfectly clear that the Act of 1911, as the Supreme Court pointed out in the Cantrell case, supra, "is general in its scope." It should be noted that in Section 8 (16 PS 3117) it is provided that "the boards of viewers of the respective counties, and the boards of view, shall, in the performance of their duties, act in accordance with such rules as shall be adopted by the courts of common pleas of the respective counties, and also under such rules and regulations as they may themselves, with the approval of the proper court or courts of common pleas of the respective counties, prescribe."
The amending Act of 1937 simply provides that in counties of the first class the "board of view shall be appointed from among the board of revision of taxes of such county."
The power granted by the Act of 1911 to the Board of View to prescribe rules and regulations, subject to the approval of the courts of common pleas, is unaffected by the amending Act of 1937.
If the highly technical contention of the plaintiff were to prevail, Philadelphia would be the only county in the State without the extremely valuable benefit of the Housing Authorities Law, whereas it should be obvious that the need for public housing projects is far more urgent in this city than elsewhere in Pennsylvania.
We are of the opinion that there is no merit whatsoever to the argument that the provision of the Housing Authorities Law giving The Authority in Philadelphia the right of eminent domain is ineffectual and void.
We are also of the opinion that there is no validity to the contention of the plaintiff that The Housing Authority's action in selecting the Liddonfield Site was arbitrary or capricious.
It is clear that the action of The Philadelphia Housing Authority in condemning the Liddonfield Site for a low rent housing project was the result of careful study and investigation extending over a period of eighteen months. The testimony of the Executive Director of The Philadelphia Housing Authority convinces us that if The Authority had halted its plan for developing the Liddonfield Site and had relied upon the hope that the City government might approve an ordinance making Camp Happy available, The Philadelphia Authority would have lost its Federal allocation of funds for public housing construction during the current Federal fiscal year ending June 30, 1953, to the serious detriment of the people of the City of Philadelphia.
It is obvious that in the absence of arbitrary or capricious action by The Philadelphia Housing Authority, its determination to select the Liddonfield Site is not subject to review by our court. (See recent opinion of Judge Flood, filed December 2, 1952, in Nine-Ten Chestnut Corporation v. The Philadelphia Parking Authority, C. P. 6, September Term, 1952, No. 4615).
CONCLUSIONS OF LAW1. The Philadelphia Housing Authority complied with the provisions of The Housing Authorities Law of 1937 in exercising its right of eminent domain in appropriating the Liddonfield Site for low rent public housing purposes.
2. The Philadelphia Housing Authority did not act in an arbitrary, capricious or improper manner in the selection of the Liddonfield Site.
3. The plaintiff and other owners of the Liddonfield Site have a complete and adequate remedy at law for damages which they may have sustained by reason of the taking of their land, through proceedings before the Board of View appointed by this court on December 8, 1952, to assess their damages.
4. The Complaint in Equity must be dismissed. Plaintiff appealed.
Frank B. Murdoch, with him Gilbert W. Oswald and William A. Schnader, for appellant.
George E. Peterson, for appellee.
Howard E. Stern, with him Milton C. Sharp, for Redevelopment Authority of City of Philadelphia, amicus curiae.
The decree is affirmed on the opinion of Judge Levinthal for the court below.
Decree affirmed at the appellant's costs.