Opinion
No. 33424
Decided October 28, 1953.
Municipal corporations — Housing Authority Law — Low-rent housing and slum elimination project — Public housing authority — Power to exercise right of eminent domain — Power to locate housing unit elsewhere than in slum area — Appropriation of selected area not prevented by zoning regulations.
1. The construction of a project which combines low-rent housing and slum elimination in accordance with the provisions of Sections 1078-29 to 1078-49 a, General Code (Sections 3735.27 to 3735.50, Revised Code), is conducive to the public welfare, and the provisions of Section 1078-34 a, General Code (Section 3735.32, Revised Code), granting the right of eminent domain to a public housing authority to be exercised in connection with the construction of such a project are not repugnant to Section 19 of Article I of the Constitution of Ohio.
2. Where a project to be constructed under the authority of and pursuant to the provisions of Sections 1078-29 to 1078-49 a, General Code (Sections 3735.27 to 3735.50, Revised Code), will combine slum elimination and construction of low-rent housing units, the housing authority, in the exercise of sound discretion, may determine the location of the housing units so to be constructed and may, in the exercise of such discretion, cause the construction of such low-rent housing units elsewhere than in the area occupied by the slum which is to be eliminated.
3. City zoning which would prevent construction of low-rent housing units in the area selected by the housing authority will not prevent or invalidate the appropriation of the selected area in a proceeding therefor brought by the housing authority, where an agreement has been made, in advance of the appropriation proceeding, between the city and the housing authority which requires the city to effect such change in zoning as may be necessary for such construction, but the court should enjoin payment of compensation and taking possession by the housing authority until the city has effected the required rezoning.
APPEAL from the Court of Appeals for Mahoning county.
The issues of this case arise out of the effort of the Youngstown Metropolitan Housing Authority to appropriate 18.028 acres of land belonging to St. Stephen's Club on which to construct a multiple-family-unit low-rent housing project.
St. Stephen's Club is a nonprofit corporation. It owns a tract of about 26 acres of land in the city of Youngstown, which it has developed and used as a recreation site for its members and for children of the neighborhood. This tract of land is bounded on three sides by privately owned single-family dwellings. The area is zoned "residential A" and is not a slum area.
After the usual preliminary negotiations, the Youngstown Metropolitan Housing Authority on December 11, 1952, entered into the annual contributions contract with the Public Housing Administration in compliance with federal statutes. This contract provides that the Public Housing Administration will advance $3,549,587 for the construction of 304 units. By ordinance, the city of Youngstown authorized the execution of an agreement, known as the co-operation agreement, between the city and the Youngstown Metropolitan Housing Authority. Such agreement was executed.
Paragraph four of that agreement provides in part:
"The city agrees that, subsequent to the date of initiation (as defined in the act) of each project and within five years after the completion thereof, or such further period as may be approved by the PHA, and in addition to the number of unsafe or insanitary dwelling units which the city is obligated to eliminate as a part of the low-rent housing project heretofore undertaken by the local authority and identified as project No. Ohio-2-1, there has been or will be elimination (as approved by PHA) by demolition, condemnation, effective closing, or compulsory repair or improvement, of unsafe or insanitary dwelling units situated in the locality or metropolitan area of the city substantially equal in number to the number of newly constructed dwelling units provided by such project * * *." (Emphasis supplied.)
Paragraph five of the co-operation agreement provides that the city shall "make such changes in any zoning of the site and surrounding territory of such project as are reasonable and necessary for the development and protection of the project and the general area."
Thereupon the Youngstown Metropolitan Housing Authority instituted a proceeding in the Common Pleas Court (being case No. 139541 therein) to appropriate the land in question. That appropriation proceeding was unsuccessfully opposed and it resulted in a determination of $27,000 as the compensation for the land to be appropriated.
Thereupon the instant proceeding was instituted in the Common Pleas Court (as case No. 139607 therein) for an order permanently enjoining the Metropolitan Housing Authority from proceeding with the appropriation proceeding, on the following three grounds:
"(a) The use to which it proposes to put said property is not a public use, and under Article I, Section 19, of the Constitution of Ohio, private property may be taken only for a public use.
"(b) Even if defendant has the right of eminent domain under the Constitution of the state of Ohio, nevertheless, it does not have the right to appropriate defendant's property in this instance for the reason that the applicable statutes limit its right of eminent domain to property comprising or located in slum areas.
"(c) Even assuming that defendant does have the power of eminent domain and may exercise the same beyond slum areas, nevertheless, it does not have a right to appropriate plaintiff's property for the reason that it is located in an area within the city of Youngstown which by the proper local authorities has been classified as `Residential A,' and in such area only single-family dwellings may be erected save and except where the Planning Commission of the City of Youngstown permits the erection of a two-family dwelling; plaintiff says that the project which defendant proposes to erect will be an integrated project consisting of approximately three hundred (300) separate units housing from four to six families each."
The trial court found the issues in favor of the defendant except that payment of the compensation and possession of the land were enjoined until adequate zoning changes have been made by the city as contemplated in the co-operation agreement.
Upon appeal to the Court of Appeals, the judgment of the Common Pleas Court was affirmed.
The cause is in this court upon the allowance of a motion to certify the record.
Mr. John W. Matasy, Messrs. Manchester, Bennett, Powers Ullman and Mr. John H. Ranz, for appellant.
Messrs. Hammond Hammond and Mr. C.J. Hoyi. for appellee.
The constitutional question raised is stated by the plaintiff-appellant as follows:
"1. Is the use of land by a metropolitan housing authority for the erection and operation of a multiple-unit housing project, occupation of which is restricted to persons of a certain minimum income, a public use?
"2. Is G.C. 1078-34 a which purports to authorize appropriation of private property for such use by a metropolitan housing authority violative of Article I, Section 19 of the Ohio Constitution?"
The defendant-appellee asserts that the above statement of the issue is incomplete in that it fails to include the fact that slum elimination is an integral and necessary element in the housing project, and that slum elimination is required both under defendant's contract with the city and under its contract with the Public Housing Administration.
The plaintiff and defendant agree that a second question is raised, to wit: May such appropriation be had even though the land is not presently appropriately zoned but where the housing authority has a contract with the city of Youngstown by which the city agrees to rezone the site to permit said construction?
The plaintiff states that the constitutionality of the Ohio Housing Authority Law as a whole is not challenged in this proceeding. It does specifically challenge the constitutionality of the provisions of Section 1078-34 a, General Code (Section 3735.32, Revised Code), which are:
"A housing authority shall have special power to appropriate, enter upon and hold real estate within its territorial limits, and such authority is hereby authorized to acquire the fee simple title, or a lesser interest, as it may elect, in any property within its territorial limits which it shall deem necessary to appropriate for the purposes of the housing authority. * * *"
The "purposes" of the housing authority were defined by Section 1078-34, General Code (Section 3735.31, Revised Code), as follows:
"An authority created under this act shall constitute a body corporate and politic, and for the purposes of (1) clearing, planning and rebuilding slum areas within the district wherein the authority is created, or (2) providing safe and sanitary housing accommodations to families of low income within such district or (3) accomplishing a combination of the foregoing, shall have the following powers in addition to others herein specifically granted * * *."
The plaintiff urges as a major proposition in support of its position that the land here being condemned is in no sense a slum or blighted area, and it asserts, therefore, that the whole purpose of the appropriation is the erection of a low-rent housing project on that land.
Our first task is to construe Section 19, Article I of the Constitution of Ohio, which reads:
"Private property shall ever be held inviolate but subservient to the public welfare. * * * where private property shall be taken for public use, a compensation therefor shall first be made in money, or first secured by deposit of money; and such compensation shall be assessed by a jury, without deduction for benefits to any property of the owner."
It is to be noted at the outset that the present proceeding does not involve the question of exemption from taxation.
Although exclusive public use may be required for tax exemption, exclusive public use is not always required as a condition to the exercise of the right of eminent domain. Subserviency to public welfare is a broader restriction upon private rights in property than subserviency to actual use by the public.
The low-rent housing project in question is coupled with slum elimination. Slum elimination is required by the Public Housing Authority, which is the federal agency, and that requirement is included in the annual contributions contract. The city of Youngstown has entered into the "co-operation agreement" in which it agrees to eliminate buildings (described in such terms as to satisfy the definition of slums) substantially equal in number to the newly constructed dwellings. It is, therefore, manifest that low-rent housing and slum clearance are both essential elements of the project. Is such project conducive to the public welfare? If so, is the land so taken to be used for a public purpose?
These are essentially the same questions as were raised, discussed and decided in the case of State, ex rel. Bruestle, City Solicitor, v. Rich, Mayor, 159 Ohio St. 13, 110 N.E.2d 778, in which the Urban Redevelopment Act was under consideration. The fifth paragraph of the syllabus of that case reads:
"The elimination of slum and other conditions of blight and provisions against their recurrence are ordinarily conducive to `the public welfare' as those words are used in Section 19 of Article I of the Ohio Constitution."
The second paragraph of the syllabus reads:
"Under Section 19 of Article I of the Ohio Constitution property taken for `the public welfare' is regarded as property `taken for public use.'"
Based upon the reasoning of the Rich case, we hold that the construction of low-rent housing units coupled with slum elimination is conducive to public welfare and is a public use of land such as satisfies the constitutional protection of Section 19 of Article I of the Ohio Constitution.
It follows that the provisions of Sections 1078-29 to 1078-49 a, General Code (Sections 3735.27 to 3735.50, Revised Code), do not controvert the Constitution so far as they authorize the exercise of the rights of eminent domain by the housing authority for the construction of such project.
Must the low-rent housing units be located in a cleared slum area? Although the plaintiff vigorously urges an affirmative answer to this question, court decisions supporting such position are not presented. We find no such requirement in the statutes. As indicating absence of such legal requirement, we recognize the well established principle that broad discretion is vested in administrative bodies and local authorities. See State, ex rel. Gordon, City Atty., v. Rhodes, Mayor, 158 Ohio St. 129, 107 N.E.2d 206, and authorities cited therein.
Many reasons are advanced which might influence the housing authority to erect the low-rent housing units elsewhere than in the area of the slum which is being eliminated. It is unnecessary to discuss them. It is sufficient to repeat the following statement found in the opinion in the case of State, ex rel. Ellis, City Solicitor, v. Sherrill, City Manager, 136 Ohio St. 328, 331, 25 N.E.2d 844:
"Naturally, in the execution of such a program a great deal must be left to the discretion and sound judgment of the local authorities, appointed in compliance with the state law. When it appears that such judgment and discretion is being reasonably exercised within lawful limits, no basis is afforded for judicial intervention.
"An examination of the evidence presented in the pending case shows on the whole a carefully conceived and balanced plan to abolish selected slum areas in the city of Cincinnati and to provide low-rent dwelling units within the municipal limits for families of low incomes, in general conformity with the purpose and design of the controlling legislation.
"If a plan as formulated by a local authority comes within the purview of the housing act and meets the approval of the National Housing Authority, whereby it is willing to lend federal funds in furtherance thereof, a court may not interfere."
No basis is here afforded for judicial intervention with respect to the decision of the housing authority, reached in the exercise of its discretion, as to the location of the low-rent housing units.
It may be observed further that this precise question has been considered by courts of other states in construing statutes similar to the Ohio Housing Authority Law. Among such decisions are:
Riggin v. Dockweiler, 15 Cal.2d 651, 104 P.2d 367, where the Supreme Court of California said:
"But the statute contains no provisions making it imperative that a new housing project be located in a slum area. On the contrary, the Legislature has commanded: `In the planning and location of any housing project, an authority shall take into consideration the relationship of the project to any larger plan or long-range program for the development of the area in which the housing authority functions.'
"In working out the problem of low-cost housing, it may appear that the clearance of a slum area is desirable because the dwellings in use are insanitary, or present fire hazards or are maintained under such conditions that their removal would be in the interest of the public welfare. Also, the location may be an undesirable one for dwellings. Where such circumstances exist, it would be folly to require the new buildings to be constructed at the old location, and compel the new units to be crowded into the space taken up by those cleared away. Such an interpretation of the housing act would thwart the very purposes for which it was passed and effectively block slum clearance in districts where the problem is most acute.
"No such result is contemplated. Under the terms of the federal and state statutes, a housing project may be built in any location deemed desirable by those charged with their administration. The legislation was enacted to provide for low-cost housing incidental to slum clearance, but with no requirement that the new structures be confined to slum areas."
In re Housing Authority of City of Charlotte, 233 N.C. 649, 660, 65 S.E.2d 761, 769, where the Supreme Court of North Carolina said:
"In the selection of a location for a housing project as authorized under the Housing Authorities Law, the project may be built either in a slum area which has been cleared, or upon other suitable site. The housing authority is given wide discretion in the selection and location of a site for such project."
Consistent with the foregoing are the decisions in Housing Authority of City of Dallas v. Higginbotham, 135 Tex. 158, 143 S.W.2d 79, 130 A.L.R., 1053; Chapman v. Huntington Housing Authority, 121 W. 203 Va. 319, 3 S.E.2d 502; and Stockus v. Boston Housing Authority, 304 Mass. 507, 24 N.E.2d 333.
Remaining to be considered is the problem of necessary changes in city zoning. The area in question is zoned as "residential A," which permits only single-family residences. To permit construction of the proposed units, rezoning is necessary. The city has agreed, as above stated, to effect the necessary rezoning. The enforceability of that agreement has not been effectively challenged. Youngstown is a charter city but its charter was not placed in evidence. Aside from such powers as may be vested in it as a charter city and subject to any limitations of power which may be contained in its charter, the power of the city to make such agreement is clearly granted by the provisions of Sections 1078-52 and 1078-53, General Code (Sections 3735.51 and 3735.52, Revised Code).
Section 1078-52 included "city" within the term, "state public body."
Section 1078-53 provided:
"For the purpose of aiding and co-operating in the planning, undertaking, construction or operation of housing projects located within the area in which it is authorized to act, any state public body may upon such terms, with or without consideration, as it may determine:
"* * *
"d. Plan or replan, zone or rezone any part of such state public body, make exceptions from building regulations and ordinances;
"e. Enter into agreements (which may extend over any period, notwithstanding any provision or rule of law to the contrary) with a housing authority or the federal government respecting action to be taken by such state public body pursuant to any of the powers herein granted * * *."
In view of that agreement, we do not believe that the necessity for rezoning would prevent or invalidate the appropriation proceeding. We, however, agree with the trial court and the Court of Appeals that consummation of the appropriation by payment and taking possession by the housing authority should be postponed until the city has fulfilled its obligation to rezone as necessary.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., HART, ZIMMERMAN and STEWART, JJ., concur.
TAFT, J., concurs in paragraphs one and two of the syllabus and in the judgment.
MATTHIAS, J., not participating.
I would also concur in paragraph three of the syllabus except for the portion thereof reading, "but the court should enjoin payment of compensation and taking possession by the housing authority until the city has effected the required rezoning." Such an injunction was granted by the trial court. No appeal to this court from the granting thereof was taken by the housing authority. We do not, therefore, have any question before this court as to whether such an injunction should have been granted. Its existence is one of the established facts of the case before this court for decision. In my opinion, paragraph three of the syllabus should merely regard it as such a fact. This could be done, for example, by substituting for the words "but the court should enjoin" the words "and where the court has enjoined."