Blumenschein v. Pittsburgh Housing Authority , 379 Pa. 566 ( 1954 )

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 bane, and from its final decree plaintiffs now appeal.

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. §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 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 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. Prom 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 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 “North Side” of- Pittsburgh; the .Summer Hill site, on the other hand,- is-within close proximity-of the blighted area , in that district.:-It consists of -an irregular tract of 179 acres lying between two valleys and presently contains only 42 houses. The technical staff of the Authority made site studies of the City, taking into consideration geography, topography, proximity to schools, the number of parcels, existing dwelling units, the assessed value of lands and buildings, estimated purchase price, proposed number of dwelling units, cost per dwelling unit, and the cost of grading, sidewalks and water lines. It was found by the Chancellor that the Summer Hill site has convenient access to commercial districts, mass transportation, public utilities and schools, and, as already stated, the City, in its cooperation agreement, agreed that it would make any reasonable and necessary changes in zoning. The Board, as already stated, studied twelve sites and finally, in the careful and conscientious exercise of its judgment, approved three of them and determined that one should be located in the “North Side” of the City as being a section which contained a considerable amount of substandard housing. Indeed, whatever may be said of the merits or demerits of the site selected by the Housing Authority, plaintiffs wholly misconceive the extent of the judicial power to review the exercise of the Authority’s discretion confided to it by the Legislature of the Commonwealth. The selection of a site for a large housing project necessarily involves many considerations; it is largely a question of practical judgment, common sense and sound discretion. By a host of authorities in oiir own¹ and other ² jurisdictions it lias been established as an elementary principle of law that courts will not review the actions of governmental bodies or administrative tribunals involving acts of discretion, in the absence of bad faith, fraud, capricious action or abuse of power; they will not inquire into the wisdom of such actions or into the details of the manner adopted to carry them into execution. It is true that the mere possession of discretionary power by an administrative body does not make it wholly immune from judicial review, but the scope of that review is limited to the determination of whether there has been a manifest and flagrant abuse of discretion or a purely arbitrary execution of the agency’s duties or functions. That the court might have a different opinion or judgment in regard to the action of the agency is not a sufficient ground for interference; judicial discretion may not be substituted for administrative discretion. Accordingly, all jurisdictions which have had occasion to consider the question agree that a court cannot substitute its own judgment for that of a Housing Authority as to the proper site for a housing project. In the very recent case of Lazrow v. Philadelphia Housing Authority, 375 Pa. 586, 592, 101 A. 2d 664, 667, we approved a statement in the opinion of the court below that “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.”

Plaintiffs’ complaint that the Board of the Housing Authority held no public or private hearings in connection with the selection of the site in controversy is wholly without merit. In the first place, such a hearing was afforded to plaintiffs and their counsel, who did in fact present their views. But furthermore, as far as the law is concerned, there is no requirement whatever in the applicable statutes of any such hearing to be given by the Board of the Authority. The Pennsylvania Housing Authorities Law (section 10) grants to the Authority a long enumerated list of powers including (paragraph “y”) the power “To conduct examinations and investigations and to hear testimony and take proof, under oath or affirmation, at public or private hearings, on any matter material for its information.” The power thus granted is not a mandate. There is no provision in the law as to the manner in which the Authority is to gather the information upon which to base its action, nor is there any constitutional or other legal, requirement that a landowner be granted a hearing before a governmental agency vested with the right of eminent domain determines to take his land for a public use.

(3) Admittedly the Summer Hill site was not itself a slum or blighted area and appellants apparently contend that low-rent housing can legally be constructed only upon some slum or blighted area which is being concurrently .eliminated. Such is. not the law. The Pennsylvania Housing Authorities .Law states (section 2) that “The public purposes for which such authorities shall operate shall be — (1) the clearance, replanning, and reconstruction of the areas in which slums exist; (2) the providing of safe and sanitary dwelling-accommodations for persons of low income, . . . ; and (3) the accomplishment of a combination of the foregoing.” In section 3 it defines “Housing Project” or “Project” as “any work or undertaking — (1) To demolish, clear or remove buildings from any slum area, ... ; or (2) to provide decent, safe, and sanitary urban or rural dwellings, apartments or other living accommodations for persons of low income, ... ; or (3) to accomplish a combination of the foregoing.” Section 16 provides that “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.” Thus it will be seen that slum-clearance projects and low-rent housing projects are distinct from one another and may be entered upon either separately or in combination. It is true that, from a practical standpoint, the "providing of low-rent housing is a necessary concomitant of slum elimination (Dornan v. Philadelphia Housing Authority, 331 Pa. 209, 225, 200 A. 834, 842). This is evidenced by the fact that the United States Housing Act of 1937, as amended, provides (section 10) that “The Administration shall not make any contract for loans (other than preliminary loans) or for annual contributions or for capital grants pursuant to this chapter with respect to any low-rent housing project initiated after March 1, 1949, unless the governing body of the locality involved has entered into an agreement with the public housing- agency providing that, subsequent to the initiation of the low-rent housing-project and within five years after the completion thereof, there has been or will be elimination, by demolition, condemnation, effective closing, or compulsory-repair or improvement, of unsafe or insanitary dwelling units situated in the locality or metropolitan area substantially equal in number to the number of newly constructed dwelling units provided by such project: . . . Provided further, That such elimination may, in the discretion of the Administration be deferred in any locality or metropolitan area where there is an acute shortage of decent, safe, or sanitary housing available to families of low income; . . . .” In the present case the Chancellor found that the Housing Authority of the City of Pittsburgh has in fact eliminated a number of substandard dwelling units equal to the number of new units it has built, as required by the United States Housing Act.

It is thus clear, therefore, that neither the Pennsylvania Housing Authorities Law nor the United States Housing Act presupposes the necessary elimination of slums prior to the building of public low-rent housing or requires the building of such housing to be on the same location as that where the slum area exists. Proper planning may well dictate the placing of the housing project in a location other than the blighted area even though the latter be eliminated only subsequently by process of demolition. As was said in Dornan v. Philadelphia Housing Authority, 331 Pa. 209, 225, 200 A. 834, 842: “True, it cannot be definitely proved that those who live in the tenements to be demolished will be those who, in whole or in part, will occupy the new dwellings, but the legislation is evidently planned to accomplish that result, and whether the object will be attained or not is a matter for the judgment and responsibility of the legislature.” (See also Allydonn Realty Corporation v. Holyoke Housing Authority, 304 Mass. 288, 294, 295, 23 N.E. 2d 665, 668, 669; Keyes v. United States, 119 F. 2d 444, 447). That the Housing Authority Laws do not require the Authorities to build the new low-rent housing on a slum area has been held generally in all jurisdictions: Stockus v. Boston Housing Authority, 304 Mass. 507, 512, 513, 24 N.E. 2d 333, 338; Chapman v. Huntington, W. Va., Housing Authority, 121 W. Va. 319, 334, 3 S.E. 2d 502, 509, 510; Hogue v. Housing Authority of North Little Rock, 201 Ark. 263, 274, 144 S.W. 2d 49, 55; Neufeld v. O’Dwyer, 79 N.Y.S. 2d 53, 59. In re Housing Authority of City of Charlotte, 233 N.C. 649, 660, 65 S.E. 2d 761, 769, it was 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. . . . And the fact that a few isolated properties in an area may be taken and dismantled which are above the standard of slum properties, or that some few desirable homes will be taken, will not affect the public character of the condemnation proceeding.” In Riggin v. Dockweiler, 15 Cal. 2d 651, 653, 104 P. 2d 367, 368, it was said: “the statute contains no provisions making it imperative that a new housing project be located in a slum area. ... 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 the same vein is Housing Authority of City of Oakland v. Forbes, 51 Cal. App. 2d 1, 6, 124 P. 2d 194, 197.

The court below concluded — and we are equally of the opinion — that the actions of the Housing Authority here in issue were not arbitrary but were based upon full and adequate information and were in conformity with the Housing Laws of both the Commonwealth of Pennsylvania and the United States, that the competent studies made by the Housing Authority clearly revealed the need for low-rent housing in the City of Pittsburgh as stated in the Authority’s application for program reservation, that the Authority did not abuse its discretion in selecting the Summer Hill site for one of its housing projects but on the contrary selected it only after a thorough study of all available sites within the City, that there is no requirement of law that housing projects be built only in blighted areas, that the cooperation agreements between the Housing Authority and the various local taxing bodies were valid, that the construction of the proposed housing will not illegally deprive plaintiffs, or any residents of the site in question, of their property or other rights without due process of law, and that therefore the plaintiffs’ bill in equity was properly dismissed.

Decree affirmed at cost of appellants.

1 For example: Liggett's Petition, 291 Pa. 109, 117, 139 A. 619, 622; Campbell v. Bellevue Borough School District, 328 Pa. 197, 202, 195 A. 53, 55; Floersheim Appeal,. 348 Pa. 98, 100, 34 A. 2d. 62, 63, 64; Pennsylvania Labor Relations Board v. Henry, 361 Pa. 565, 571, 64 A. 2d 764, 767; Triolo v. Exley, 358 Pa. 555, 558, 57 A. 2d 878, 880; Reininger Zoning Case, 362 Pa. 116, 118, 66 A. 2d 225, 226; Schenck v. Pittsburgh; 364. Pa. 31, 35, 36, 70 A. 2d 612, 614; Nine-Ten Chestnut Corporation v. Philadelphia Parking Authority, 373 Pa. 274, 95 A. 2d 553; Oliver v. Clairton, 374 Pa. 333, 340, 341, 98 A. 2d 47, 51; Lazrow v. Philadelphia Housing Authority, 375 Pa. 586, 592, 101 A. 2d 664, 667.

2 For example: Jarrett v. Norfolk Redevelopment and Housing Authority, 169 F. 2d 409, 411; Matthaei v. Housing Authority of Baltimore City, 177 Md. 506, 513, 514, 9 A. 2d 835, 838; Stockus v. Boston Housing Authority, 304 Mass. 507, 509-512, 24 N.E. 2d 333, 336, 337; Brammer v. Housing Authority of Birmingham District, 239 Ala. 280, 283, 195 So. 256, 258; Chapman v. Huntington, W. Va., Housing Authority, 121 W. Va. 319, 332, 333, 3 S.E. 2d 502, 509; In re Housing Authority of City of Charlotte, 233 N.C. 649, 656, 65 S.E. 2d 761; Neufeld v. O’Dwyer, 79 N.T.S. 2d 53, 61, 62.