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Messer v. Virgin Islands Urban Renewal Board

decided: June 11, 1980.

ANTONIO MESSER D/B/A TONY'S LAUNDRY & DRY CLEANERS
v.
VIRGIN ISLANDS URBAN RENEWAL BOARD, ET AL., ANTONIO MESSER, APPELLANT



ON APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX C.A. No. 78-0188

Before Adams, Maris and Sloviter, Circuit Judges.

Author: Per Curiam

Opinion OF THE COURT

The primary issue in this appeal is whether one who moves from a property that is under consideration for redevelopment may receive damages for the costs incurred in the move when the move takes place before a governmental agency acquires title to the property or the right to possession of such property. We hold that he may not and accordingly affirm.

I.

Antonio Messer brought this action against Virgin Islands Urban Renewal Board (the Board), its director, the Department of Housing and Urban Development (HUD), and the Department's area director for the Virgin Islands. Messer alleged that he was entitled to relocation assistance under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (Relocation Act), 42 U.S.C. §§ 4601-4655 (1976). The Relocation Act provides relocation benefits to those persons and businesses that fit the statutory definition of "displaced persons." Section 101(6) of the Relocation Act states that the term "displaced person" means "any person who . . . moves from real property . . . as a result of the acquisition of such real property, in whole or in part, or as the result of the written order of the acquiring agency to vacate real property, for a program or project undertaken by a federal agency, or with federal financial assistance. . . ." 42 U.S.C. § 4601(6). Implementing regulations promulgated by HUD provide that displacement by "acquisition" includes a displacement which is the result of "(t)he obtaining by the acquiring agency of title to or the right to possession of such real property for a project." 24 C.F.R. § 42.55(e)(1) (1979).

The Board is a local government agency that administers urban renewal projects. It is eligible to receive funding from HUD under the National Housing Act of 1949. On December 15, 1972, the Board held a public hearing to discuss the possibility of urban renewal in a section of Frederiksted, St. Croix, known as the Hill Street Area. On March 28, 1973, the Virgin Islands Legislature approved an urban renewal plan filed by the Board, pursuant to V.I.Code Ann. tit. XXIX, § 92(f), which included a proposal for urban renewal of the Hill Street Area.

On April 1, 1973, Messer leased a building located at 13 Queen Street, in the Hill Street Area, for the purpose of conducting a dry cleaning business. The Board entered into a contract with HUD, on August 23, 1973, under which the Department was to assist the Board in carrying out certain renewal activities in the Hill Street Area. On November 20, 1973, the Board sent a letter to the owner of all business concerns in the area, including Messer, which advised that relocation benefits would be payable "in the event of displacement of business concerns or property." The letter stated that payment would be "based on the date of displacement" as defined in HUD regulations. It went on to specify that such "date is related to the date we acquire it," and, because "a move prior to the date specified in HUD regulations may jeopardize eligibility for a relocation payment, we urge you to check with us before making any move."

Messer leased another location outside the Hill Street Area for his dry cleaning business on September 1, 1975, and eventually moved to the new location on October 29, 1976. Nothing in the record indicates, however, that prior to Messer's move the Board had acquired either title to or a lease of the property where his business had been located, had ordered the owner or Messer to vacate the premises, or had issued a written notice of its intent to acquire the particular property for the urban renewal project.

In October 1976, Messer filed with the Board a claim for relocation benefits in which he asserted that he had not been paid benefits "as proposed in the public hearing held on December 15, 1972, nor as published in HUD's November 20, 1973 information letter." The claim, which amounted to approximately $22,000.00, was denied by the Board on May 27, 1977, on the ground that Messer did not satisfy the eligibility requirements set forth in the statute or regulations.

Pursuant to 24 C.F.R. § 42.325, Messer renewed his claim by submitting it to the local area office of HUD. The claim was denied by the local area office on January 10, 1978. HUD ruled that because Messer had not moved as a result of the acquisition of the property by the Board, his claim did not satisfy the statutory and regulatory requirements.

Messer brought suit in the district court on December 20, 1978, in which he sought judicial review of the denial of his claim. All defendants filed motions to dismiss the complaint for failure to state a claim upon which relief could be granted. Fed.R.Civ.P. 12(b)(6).

On May 18, 1979, the district court issued a memorandum opinion which held that Messer was not a "displaced person" under the Relocation Act and therefore was not eligible for benefits. It also concluded that Messer's move was not the result of the acquisition of the property in question as defined by the Relocation Act and implementing regulations. Inasmuch as the district court considered matters outside the pleadings, the dismissal may be properly ...


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