PITTSBURGH HOTELS ASSOCIATION, INC., a Pennsylvania
Corporation; Carlton Hotel Corporation, a Pennsylvania
Corporation; Hilton Hotels Corporation, a Delaware
Corporation; Allegheny Hotel Corporation, a Pennsylvania
Corporation; Pittsburgher Hotel Company, a Pennsylvania
Corporation; and Sheraton Mid-Continent Corporation, a
Delaware Corporation, Appellants,
v.
The URBAN REDEVELOPMENT AUTHORITY OF PITTSBURGH, a
Pennsylvania Corporation,and Leon Falk, Jr., Joseph S. Wohl
and Golden Triangle Motor Hotel, Inc., aPennsylvania
Corporation, and the City of Pittsburgh, Pennsylvania, Appellees.
No. 14014.
United States Court of Appeals Third Circuit.
Argued June 22, 1962.
Decided Oct. 22, 1962.
D. Malcolm Anderson, Pittsburgh, Pa., (Donald C. Bush, Pittsburgh, Pa., on the brief), for appellants.
Theodore L. Hazlett, Jr., Pittsburgh, Pa. (John O. Wicks, Jr., Pittsburgh, Pa., on the brief), for appellee, Urban Redevelopment Authority of Pittsburgh.
Earl F. Reed, Pittsburgh, Pa. (Louis Caplan, Charles Weiss, Thorp, Reed & Armstrong, Pittsburgh, Pa., on the brief), for appellees, Leon Falk, Jr., Joseph S. Wohl and Golden Triangle Motor Hotel, Inc.
Mead J. Mulvihill, Jr., Pittsburgh, Pa. (David W. Craig, on the brief), for City of Pittsburgh.
Before BIGGS, Chief Judge, and GANEY and SMITH, Circuit Judges.
GANEY, Circuit Judge.
Six plaintiffs, a hotel association and five corporations which own and operate hotels in Pittsburgh, Pennsylvania, hotels in Pittsburgh, Pennsylvania, brought an action allegedly under the amended, 42 U.S.C.A. 1441 et seq., to enjoin Golden Triangle Motor, Inc., from erecting a hotel on a parcel of land in an officially designated redevelopment area in the City of Pittsburgh until that city 'has caused to be made a competent independent analysis of the local supply of transient housing and as a result thereof determined that there exists in thе area a need for additional units of such housing.' The complaint avers that the plaintiffs' hotel business will be adversely affected by the operation of the proposed motor hotel since there is no need now or in the foreseeable future for such a unit in that area. The defendants are the Urban Redevelopment Authority of Pittsburgh ('Authority'), Leon Falk, Jr., Joseph S. Wohl, Golden Triangle Motor Hotel, Inc., and the City of Pittsburgh, Pennsylvania.2
On January 3, 1952, a contract between the United States, acting through the Federal Housing Administrator, and the Authority was executed. Under the terms of the contract the United States agreed to make an advancement not to exceеd $71,700 to the Authority for the purpose of making surveys and plans in preparation for a redevelopment project in the City of Pittsburgh. Apparently, in accordance with the provisions of the Pennsylvania Urban Redevelopment Law of 1945, P.L. 991, as amended, 35 P.S. 1701 et seq., the City Planning Commission of Pittsburgh completed a plan dated June 7, 1955, for the proposed redevelopment of an area in the Lower Hill district of the City. The area encompasses 46 city blocks and the project is designated as the Lower Hill Redevelopment Project, Redevelopment Area No. 3 ('Project'). The Plan divides the land into commercial, cultural, recreational, eduсational, residential, parking and open area, and designates the location of streets. Parcel 'B' on the Plan contains approximately 5.3 acres abutting Fifth Avenue and Liberty Crosstown Thorofare. This parcel is designated for commercial use and had four streets running across it. One of them is named Chatham Street which was 60 feet wide and was to be used as a public thoroughfare.
The Plan contains a provision that the redeveloper shall devote the land to uses specified in the Plan for such area. The word 'Hotel' is listed under the permitted buildings to be erected in the area designated as commercial.3 Another provision limits the height of any building or sturcture to be constructed thereon to two stories or twenty feet. Part J of the Plan provides that 'This Plan may be modified at any time upon approval of such modification by the Council of the City of Pittsburgh, the City Planning Commission of the City of Pittsburgh and the Urban Redevelopment Authority of Pittsburgh * * *.' The Plan was approved by Council of the City of Pittsburgh on July 13, 1955, by Ordinance No. 255.
On August 2, 1954, the Housing Act of 1949 was amended by the Housing Act of 1954, 68 Stat. 590, which authorized the establishment of an urban renewal fund and the grant of monies from that fund for certain specific purposes in accordance with the laws involved and the regulations of the Federal Housing Administrator. Section 312 of that Act, 68 Stat. 629, 42 U.S.C.A. 1450 note, provides that the Administrаtor 'with respect to any project covered by any Federal aid contract executed, or prior approval granted, by him under said title I before the effective date of this Act, upon request of the local public agency, shall continue to extend financial assistance for the completion оf such project in accordance with the provisions of said title I in force immediately prior to the effective date of this Act.'
On October 11, 1955, the Authority entered into a grant and loan Contract with the United States. The Contract sets forth that 'The purpose of the contract is to provide for the extension by the federаl government to the Authority of financial assistance under the Housing Act of 1949, as amended prior to the enactment of the Housing Act of 1954, with respect to the project', and states the terms and conditions upon which such assistance will be extended and the understandings of the parties to the Contract as to the manner in which they сontemplate hat the Project will be undertaken and carried out. The Contract also provides that the Plan was satisfactory to the Federal Government, and recognized that amendments to the Plan would be made from time to time in conformity with applicable law and the provisions of the Contract, and that the Federal Government agrees to grant and loan money to the Authority to enable it to make Project land available for redevelopment for uses in accordance with the Plan. From time to time there were a number of waivers and amendments to the Contract, and several modifications to the Plan.
Amendments were madе to both the Housing Act of 1949 and 1954 by the Act of September 23, 1959, 73 Stat. 654, Known as the Housing Act of 1959. Section 410 of that Act, 42 U.S.C.A. 1456(g), amended 106 of the Housing Act of 1949, 63 Stat. 413, by adding the following subsection:
'(g) No provision permitting the new construction of hotels or other housing for transient use in the redevelopment of any urban renewal area under this subchapter shall bе included in the urban renewal plan unless the community in which the project is located, under regulations prescribed by the Administrator, has caused to be made a competent independent analysis of the local supply of transient housing and as a result thereof has determined that there exists in the area a need for additional units of such housing.'4
By Modification No. 2, approved by Council of the City of Pittsburgh on September 27, 1960, Chatham Street was removed from Parcel 'B' of the Plan.
In November of 1960, Leon Falk, Jr., and Joseph S. Wohl, private redevelopers, made a proposal to the Authority for a six month option to enter into a 99 year lease for the purpose of redeveloping Parcel 'B' 'with an eight-story motor hotel in excess of twenty feet in height.' Later Falk and Wohl formed a corporation known as Golden Triangle Motor Hotel, Inc., for the purpose of exercising the option and developing the parcel of land in question. On June 8, 1961, a six month option сontract was signed by the Authority and Golden Triangle Motor Hotel, Inc. The Federal Government has approved the proposed redevelopment of Parcel 'B' by means of the construction of the motor hotel. Neither the City of Pittsburgh nor the Authority has caused to be made an independent analysis or a survey of the loсal existence of transient housing facilities for the purpose of determining the need for the proposed motor hotel.
On July 31, 1961, the six plaintiffs brought the action here involved. The above option was to have expired in November of 1961, but repeated extensions necessitated by the litigation have been granted. The Federal Government has consented to the extensions. On September 7, 1961, defendants moved for summary judgment on the grounds that (1) plaintiffs had no standing to maintain the action, (2) that the statute relied upon by plaintiffs was not applicable, and if it were, that statute could not be applied constitutionally to this project. After a number of hearings, the District Court for the Western District of Pennsylvania on February 14, 1962, ordered that summary judgment be entered in favor of defendants and that the complaint be dismissed.
We agree that the dismissal of the complaint was proper. The Housing Act of 1949, as amended prior to the effective date of the Housing Act of 1959, did not give the plaintiffs standing tо sue in this action.5 Taft Hotel Corporation v. Housing and Home Finance Agency,
Plaintiffs point out that under this interpretation of subsection (g) a hotel can be built, as may be the case here, many years after the approval of thе originalplan when the need for such unit will be much less than it was when the provision was approved. Conceding this to be a possibility it is also possible that the need may become greater. Additionally, a radical change in the facts developed by the survey may take place even if plaintiff's interpretation were tо be the accepted one. Even though, after a survey, a determination is reached that there is need for a hotel, between the time of that determination and the actual operation of that housing unit, the need for it may likewise disappear. Moreover, as time passes, the eventuality similar to time which the рlaintiffs seek to prevent here will vanish. We think Congress was aware of this eventuality when it wrote subsection (g).7
That the Plan regarding Parcel 'B' was changed after the effective date of the 1959 Act by the removal of a street upon which no structure was permissible and that the height of the proposed hotel will violate a restrictiоn set forth in the Plan does not nullify the fact that a provision permitting the construction of a hotel existed prior to the effective date of the 1959 Act. Of course, any change, no matter how slight, in the Plan is pro tanto a modification of the Plan. But the paragraph allowing modification of the Plan at any time is part of the provision permitting the use of the land by the construction of a hotel thereon. A point may be reached where a modification of a provision will be such as to change the provision into a new one. The changing of land marked for residential use to commercial might be one example. At what point the transition оccurs we need not determine here. Suffice it to say that we think that the removal of Chatham Street and the structural height restriction did not change the provision of the Plan into a new one.
The order dismissing the complaint will be affirmed.
This statute was enacted to permit the Federal government to make grants and loans to aid municipalities in slum clearance and сommunity redevelopment
Notes
Diversity of citizenship does not exist between all of the plaintiffs and all of the defendants
Part F. 2b(2)(a) of the Redevelopment Area Plan for Redevelopment Area #3
Prior to this addition, there was no provision in the law requiring a preliminary survey with regard to urban renewal plans
Section 9 of the Pennsylvanаia Urban Redevelopment Law, 35 P.S. 1709, provides: 'An Authority shall constitute a public body, corporate and politic, exercising public powers of the Commonwealth as an agency thereof, which powers shall include all powers necessary or appropriate to carry out and effectuate the purpose and provisions of this act * * *:'. Despite this broad language, the Supreme Court of Pennsylvania has ruled that: 'The Redevelopment Authorities are purely administrative bodies enjoying no important power which is not subject to the approval of the city council or the county commissioners; the Authorities cannot indeрendently exercise any municipal functions. Moreover they are public bodies and not special commissions or private corporations within the meaning of the constitutional prohibition (of the Commonwealth).' See Belovsky v. Redevelopment Authority of Philadelphia et al.,
One of the items listed under 9 as subsection (q) is 'Tо sue and be sued.' But giving consent to be sued does not confer jurisdiction upon a Federal district court over a controversy involving the Authority.
Plaintiffs do not claim that the Housing Act of 1949, as amended, is unconstitutional. They do not seek to restrain the enforcement of a Pennsylvania statute as being unconstitutional on its face (which would have required the convening of a three-judge statutory court), or seek to restrain the action of State officiers who are enforcing a State statute in an unconstitutional manner. Nor od they assert that the enforcement of State law deprives them of due process of law or denies them the equal protection of the laws.
Prior to its final passage, the proposed amendments had contained a provision directing the Federal Housing Administrator to amend existing contracts between the Government and the local urban renewal authorities is order to bring such contracts into conformity with changes set forth in the proposed аmendments. Since the Committee on Banking and Currency understood that existing law permitted those contracts to be amended to incorporate the provisions of the proposed Act, the above proposed provision was deleted. See S.Rep. No. 924, Sept. 8, 1959, 86th Cong., 1st Sess., 1959 U.S.Code Cong. and Adm.News, p. 2846. Moreover, on this рoint the Federal Housing Administrator should be heard, but he is not a party to the action
In the fall of 1957, the Subcommittee on Housing held extensive hearings in many parts of the country to develop information regarding urban renewal and lowrent housing programs. The Senate Report to the proposed legislation concerning the Hоusing Act of 1959 states: 'During consideration of housing legislation in 1957, many members of the committee became alert to the need for projecting Federal participation in both those programs into future years on a sustained and predicatable basis, and with emphasis upon local responsibility and autonomy.' See S.Rep. No. 924, 86th Cong., 1st Sess. (Sept. 8, 1959), 1959 U.S.Code Cong. and Adm. News, p. 2845