445 F.Supp. 204 (S.D.N.Y. 1978), 71 Civ. 4315, Trinity Episcopal School Corp. v. Harris

Docket Nº:71 Civ. 4315 (IBC).
Citation:445 F.Supp. 204
Party Name:TRINITY EPISCOPAL SCHOOL CORPORATION and Trinity Housing Company, Inc., Plaintiffs, and Roland N. Karlen, Alvin C. Hudgins and Continue, Plaintiffs-Intervenors, v. Patricia Roberts HARRIS, Secretary of Department of Housing and Urban Development, et al., Defendants, and Strycker's Bay Neighborhood Council, Inc., Defendant-Intervenor.
Case Date:January 19, 1978
Court:United States District Courts, 2nd Circuit
 
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445 F.Supp. 204 (S.D.N.Y. 1978)

TRINITY EPISCOPAL SCHOOL CORPORATION and Trinity Housing Company, Inc., Plaintiffs,

and

Roland N. Karlen, Alvin C. Hudgins and Continue, Plaintiffs-Intervenors,

v.

Patricia Roberts HARRIS, Secretary of Department of Housing and Urban Development, et al., Defendants,

and

Strycker's Bay Neighborhood Council, Inc., Defendant-Intervenor.

No. 71 Civ. 4315 (IBC).

United States District Court, D. New York

Jan. 19, 1978

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[Copyrighted Material Omitted]

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Demov, Morris, Levin & Shein, New York City, for plaintiffs; Eugene J. Morris, New York City, of counsel.

Robert B. Fiske, Jr., U. S. Atty. for the Southern District of New York, New York City, for defendants; Peter C. Salerno, Asst. U. S. Atty., New York City, of counsel.

Allen G. Schwartz, Corp. Counsel for the City of New York, New York City, for City of New York; Leonard Grunstein, Asst. Corp. Counsel, New York City, of counsel.

Catherine P. Mitchell, Community Action for Legal Services, Inc., New York City, for defendant-intervenor; John de P. Douw, New York City, of counsel.

OPINION

IRVING BEN COOPER, District Judge.

The Government has moved to dissolve the Order entered by this Court on September 25, 1975, which enjoined construction on Site 30 of the West Side Urban Renewal Area. Additionally, the Government has moved for summary judgment dismissing the complaint. Both motions are granted.

Before embarking on the discussion of the issues now before the Court, a very brief recital of the history pertaining to the instant applications is appropriate. 1 This action was commenced by plaintiffs Trinity Episcopal School Corporation (hereinafter "Trinity") and Trinity Housing Company, Inc., 2 to enjoin conversion of the housing

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project planned for Site 30 3 of the West Side Urban Renewal Area ("WSURA") from 30 per cent low-income housing to 100 per cent low-income housing and to prevent the use of federal funds therefor. Plaintiffs Roland H. Karlen, Alvin C. Hudgins and CONTINUE (Committee Of Neighbors To Insure a Normal Urban Environment) later intervened. The named defendants included, inter alia, the United States Department of Housing and Urban Development ("HUD") and the City of New York. Strycker's Bay Neighborhood Council, Inc., was allowed to intervene as a defendant.

At the original trial of this action, we were presented with four issues for resolution: (1) whether the defendants had breached their contract with Trinity; (2) whether the defendants had failed to conform with the purposes and intent of the West Side Urban Renewal Plan promulgated by City and State agencies to rehabilitate a portion of WSURA which includes Site 30; (3) whether the concentration of low-income housing in Trinity's immediate area would create an impermissible "pocket ghetto" of a nonintegrated nature; and (4) whether HUD had complied with the requirements of the National Environmental Policy Act (hereinafter "NEPA"). We found in defendants' favor on all four issues.

The Court of Appeals affirmed our judgment on the first three issues, but remanded the case back to us as to the fourth. Trinity v. Romney, 523 F.2d 88, 95 (2d Cir. 1975). We had found HUD's determination that construction of low-income housing on Site 30 would not "significantly (affect) the quality of human environment" was not an arbitrary and capricious decision. We had therefore held that an Environmental Impact Statement ("EIS"), otherwise required by Section 102(2)(C) of NEPA, Section 4332(2)(C), Title 42 of the United States Code, would not be necessary. Trinity, 387 F.Supp. at 1077, 1082. Consequently we concluded, erroneously, that HUD did not have to consider alternatives to construction of low-income housing on Site 30.

Upon that error the Court of Appeals reversed and remanded holding that Section 102(2)(D) of NEPA, Section 4332(2)(D), Title 42 of the United States Code, 4 independently of Section 102(2)(C) of NEPA, imposed upon a federal agency the obligation to consider alternatives wherever a proposed federal action involves unresolved conflicts concerning alternate uses of available resources. Trinity, 523 F.2d at 93. The mandate by our Court of Appeals to us is clear and explicit (523 F.2d at 95):

We find that HUD's acceptance of the "no alternatives" conclusion as a matter of law fails to meet the directive of 102(2)(D) of NEPA. We remand so that the District Court can fashion an appropriate order requiring HUD to consider reasonable alternatives to the development of Site 30 as a 100 per cent low-income housing project to the fullest extent possible using HUD regulations as guidelines for the type of alternatives and the context of urban environmental factors to be used in the process of consideration of alternatives, consistent with the scheme of the Plan.

The Circuit Court disapproved HUD's action in simply adopting the conclusion of the New York City Housing Authority ("City Housing Authority") that there were no alternative site locations because of the scarcity of land in WSURA (523 F.2d at 94):

This blanket generalization unsupported by the evidence as to alternative sites within the area (not to mention other potential sites) does not conform with HUD's responsibilities. HUD is not required

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to search out potential sites throughout the New York metropolitan area but the federal agency must itself determine what is reasonably available especially where as here the building of public housing is part of a coordinated plan to deal with the broad problem of meeting the housing needs of low income residents.

In delineating what HUD's consideration of alternatives should embrace, the Circuit Court required HUD to investigate alternatives not from a viewpoint as to how HUD or the City Housing Authority would choose to resolve the City's low-income housing situation, but "as to how within the framework of the Plan its objective of economic integration can best be achieved with a minimum of adverse environmental impact" (523 F.2d at 94):

(HUD's search should take in) the entire West Side Urban Development Area, the percentage of low-income units in that particular location, the sizes, types and designs of existing and possible alternative housing, whether there may be ways of spreading low-income units throughout the area rather than concentrating them in a few plots such as Site 30, and whether rehabilitation of existing housing may be developed as a means of achieving the Plan's contemplated economic ratio. . . . Nor is it sufficient to approach the problem on an Area-wide basis. The purpose of the Plan is integration not concentration.

The factors to be considered by a federal agency before deciding to build in an urban environment were enumerated by the Circuit Court (523 F.2d at 93-94): site selection and design, density, displacement and relocation, quality of the built environment, impact of the environment on the current residents and their activities, decay and blight, implications for the city growth policy, traffic and parking, noise, neighborhood stability, and the existence of services and commercial enterprises to service the new residents. Against these factors, the Circuit Court held that HUD was required by NEPA and its own regulations to consider a variety of alternatives (523 F.2d at 94): alternative locations or sites, alternative of not building, alternative designs both in use of site and size of individual apartment units and number of total units, dispersal of the low-income units on more sites in WSURA, alternative measures for compensating or mitigating environmental impacts, and finally, alternatives requiring action of a significantly different nature which would provide similar benefits with different impacts such as rehabilitation of existing buildings in WSURA as public housing projects.

Pursuant to the mandate of our Circuit, on September 25, 1975, we enjoined further construction of public housing on Site 30 until the mandate had been complied with. On April 25, 1977, HUD filed with this Court its completed Special Environmental Clearance (hereinafter "Clearance"). Subsequently, on September 21, 1977, the Government moved to dissolve the Court's Order of September 25, 1975, and for summary judgment dismissing the complaint in its entirety contending that the mandate of the Second Circuit had been complied with. Plaintiffs filed their answering papers on October 25, 1977; oral arguments were heard October 26 and reply papers received on November 11 and 14. 5 The Government's applications are now ready for decision.

Plaintiffs strenuously disagree with the Government that HUD has complied with the mandate of the Second Circuit. Plaintiffs insist that the "matter" be returned to HUD for further proceedings. Among the objections voiced by plaintiffs is that HUD followed Section 102(2)(C)(iii) and not Section 102(2) (D) as the Circuit Court specified. Furthermore, plaintiffs claim that in proceeding according to Section 102(2)(C) HUD avoided having to hold public hearings, a course which plaintiffs assert is necessitated by Section 102(2) (D). Plaintiffs also submit that had "the proper procedure . . . been followed, and a correct analysis . . .

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made of the elements being evaluated, it would have been established that 160 units of low-income public housing should not be built on Site 30 and the funds for such housing should be transferred out of the area (WSURA) to another site where such housing is needed and there are a number of such sites available." Plaintiffs' Memorandum of Law dated October 24, 1977, at page 4.

Plaintiffs additionally contend that (1) the Clearance prepared by HUD as to alternatives is a "rubber stamp" of the position of defendants in this action; 6...

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