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BLUMENSCHEIN v. PITTSBURGH HOUSING AUTHORITY. (11/22/54)

November 22, 1954

BLUMENSCHEIN, APPELLANT,
v.
PITTSBURGH HOUSING AUTHORITY.



Appeal, No. 254, March T., 1954, from decree of Court of Common Pleas of Allegheny County, Oct. T., 1951, No. 332, in case of Louis Blumenschein et al., v. Housing Authority of City of Pittsburgh. Decree affirmed; reargument refused December 13, 1954. Bill in equity. Before NIXON, J. Adjudication filed finding for defendant; exceptions to adjudication dismissed and final decree entered, before MARSHALL, NIXON and COLUMBUS, JJ., opinion by NIXON, J. Plaintiffs appealed.

COUNSEL

Harry Alan Sherman, for appellants.

Everett E. Utterback, with him William H. Mendlow, for appellee.

Before Stern, C.j., Stearne, Jones, Chidsey, Musmanno and Arnold, JJ.

Author: Stern

[ 379 Pa. Page 567]

OPINION BY MR. CHIEF JUSTICE HORACE STERN

Plaintiffs, on behalf of themselves as taxpayers and all other persons similarly affected, filed a complaint in equity to enjoin the Housing Authority of the City of Pittsburgh from taking by eminent domain their properties located on a certain site selected by the Authority for a public housing project. An answer having been filed and hearing held, the Chancellor dismissed the complaint. Plaintiffs' exceptions were dismissed by the court en banc, and from its final decree plaintiffs now appeal.

[ 379 Pa. Page 568]

In August, 1949, the Housing Authority of the City of Pittsburgh, operating under the Housing Authorities Law of May 28, 1937, P.L. 955, as amended, passed a resolution authorizing the execution of a formal application to the Public Housing Administration for a two-year program consisting of 5,000 dwelling units of low-rent public housing and for a preliminary loan in the amount of $650,000 to cover the cost of surveys and planning in connection with the development of the program. This application declared that there was a need for low-rent housing in the City of Pittsburgh which was not being met by private enterprise, and it contained information required by the Public Housing Administration in order to guide it in determining the need of the Housing Authority of the City of Pittsburgh as compared to the need of other local Housing Authorities. Thereupon the City Council of Pittsburgh passed a resolution approving this application and likewise declaring that there existed in the City of Pittsburgh a need for low-rent public housing. The Public Housing Administration (which is an agency of the United States Government administering the federal government program of public housing in accordance with the United States Housing Act of September 1, 1937, c. 896, 50 Stat. 888 et seq., 42 U.S.C.A. ยง 1401 et seq., as amended) approved the application for preliminary loan and made a program reservation for 5,000 low-rent dwelling units of which 3,000 units were listed for the first year's program and 2,000 units for the second year. The City of Pittsburgh, the School District of Pittsburgh, the County of Allegheny, and the County of Allegheny Institution District each passed resolutions authorizing the execution of cooperation agreements with the Housing Authority; the agreement with the City of Pittsburgh provided that the City would furnish certain municipal services, aid

[ 379 Pa. Page 569]

    in an equivalent elimination program, and make such changes in zoning as were reasonable and necessary; it provided also for payments by the Authority in lieu of taxes.

After considering twelve possible sites for projects the Board of the Housing Authority approved three of them, namely, the Bedford Avenue site located in the "Hill District" of the City, the Henger Hill site located in the "South Side" of the City, and the Summer Hill site located in the "North Side" of the City, the last named being the one involved in the present litigation and for which there was planned the construction of 1,984 dwelling units. The Housing Authority caused a topographical, property line and utilities survey to be conducted on this site, whereupon the plaintiffs, who are officers of a "North Side Protest Committee," anticipating that the properties of the residents would be condemned for purposes of the project, filed their complaint seeking an injunction against the Housing Authority from taking further action in the matter.

Plaintiffs' complaint lists a multitude of alleged illegalities in the proceedings in connection with this housing project, but they may all be reduced to three principal charges: (1) That the Board of the Housing Authority made no proper preliminary investigations or independent survey justifying their assertion that there was a need for low-rent public housing in the City of Pittsburgh, and that the alleged need which it stated in its application for program reservation was in excess of any disclosed by competent and authoritative surveys; (2) that the selection of the Summer Hill site for a housing project was arbitrary and constituted an abuse of discretion on the part of the Authority, that a so-called "Seldom Seen" site which plaintiffs proposed would be more convenient for the

[ 379 Pa. Page 570]

    persons supposed to tenant the project, and that the Authority had not held any hearings, public or private, in regard to the selection of a site; (3) that the site here in question was admittedly not a slum or blighted area and that no concomitant slum-clearance program was contemplated in connection with the project.

(1) There is no justification whatever for plaintiffs' complaint that the Housing Authority proceeded in an arbitrary, capricious manner, without any real study or investigation that naturally ought to be given to so serious a project. The learned Chancellor found - and his finding was fully justified by the evidence - that in preparing the application for program reservation the Authority properly relied upon material from the 1940 census figures as requested by the Public Housing Administration and which showed over 70,000 substandard dwellings in the City, upon excerpts from a report of the Allegheny County Conference on Community Development, upon a Report of the Bureau of Building Inspection showing the number of unsafe buildings demolished and units built during the period from 1940 to 1947, upon consultations with the Pittsburgh Housing Association, upon information obtained from the Tenant Selection Office and Management Division and from members of the technical staff of the Authority, and upon consultations with members of the staff of the Public Housing Administration. From these sources it reached the entirely justified conclusion that there existed an acute low-rent housing shortage in the City of Pittsburgh. it may be added that the Authority also consulted various public bodies in reference to problems of water supply, sewers, playgrounds and schooling, such as the City Planning Commission, the Department of Public Works, the School Board of the City of Pittsburgh, and the Bureau of

[ 379 Pa. Page 571]

Parks and Recreation. All the data thus obtained was presented to, and considered by, the Authority at a number of meetings held during the course of almost a year. It will thus be seen that the Board acted only after securing information from various authoritative sources and holding elaborate discussions, and therefore there is no basis for the charge made by plaintiffs that its assertion of the existence of a low-rent housing shortage in the City was made arbitrarily, impetuously, or from improper motives. It is important also to bear in mind that the United States Housing Act provides (section 15) that the Public Housing Administration should not make any contract with a public housing agency for preliminary loans unless such agency had demonstrated to the satisfaction of the Administration that there was a need for such low-rent housing which was not being met by private enterprise. The fact that the Public Housing Administration approved the Housing Authority's application therefore shows that it was satisfied as to the existence of a low-rent housing need in the City of Pittsburgh.

(2) Plaintiffs claim that the Summer Hill site was a bad selection on the part of the Housing Authority because the proposed structures on that site would allegedly interfere with presently existing zoning restrictions, the schooling, church and transportation facilities would be inadequate, and the cost of the project would be excessive. They assert that the "Seldom Seen" site, the selection of which they advocated, would have been a better choice on the alleged ground that it contained only a few dilapidated structures, required no grading of any consequence, and would involve a lower cost. The "Seldom Seen" site is not on the ...


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