Karlen v. Harris, 1079

• Decision Date: 14 December 1978
• Docket Number: No. 1079,D,1079
• Citation: 590 F.2d 39
• Parties: , 9 Envtl. L. Rep. 20,001 Roland N. KARLEN, Alvin C. Hudgins and Continue, Plaintiffs-Appellants, v. Patricia Roberts HARRIS, Secretary of the Department of Housing and Urban Development, The City of New York and Strycker's Bay Neighborhood Council, Inc., Defendants-Appellees. ocket 78-7147.
• Court: U.S. Court of Appeals — Second Circuit

Page 39

590 F.2d 39

13 ERC 1769, 9 Envtl. L. Rep. 20,001

Roland N. KARLEN, Alvin C. Hudgins and Continue, Plaintiffs-Appellants, v. Patricia Roberts HARRIS, Secretary of the Department of

Housing and Urban Development, The City of New

York and Strycker's Bay Neighborhood

Council, Inc., Defendants-Appellees.

No. 1079, Docket 78-7147.

United States Court of Appeals,

Second Circuit.

Argued June 12, 1978.

Decided Dec. 14, 1978.

A. David Benjamin, New York City (Demov, Morris, Levin & Shein, Eugene J. Morris and Jonathan M. Bryer, New York City, of counsel), for plaintiffs-appellants.

Peter C. Salerno, Asst. U. S. Atty. for the Southern District of New York, New York City (Robert B. Fiske, Jr., U. S. Atty., New York City, of counsel), for defendant-appellee Harris.

Carolyn E. Demarest, New York City (Allen G. Schwartz, Corp. Counsel of the City of New York, Leonard Koerner, New York City, of counsel), for defendant-appellee City of New York.

John de P. Douw, New York City (Catherine P. Mitchell, Community Action for Legal Services, Inc., New York City, of counsel), for defendant-appellee Strycker's Bay Neighborhood Council, Inc.

Before MOORE, MULLIGAN and GURFEIN, Circuit Judges.

MOORE, Circuit Judge:

This is the second appeal to come before us in "a case directly affecting the future of a 20 square block community and its more than 35,000 current and former residents." ¹ The particular site (Site 30) involved is part of the West Side Urban Renewal Area ("WSURA" or "Area"), and is located on the west side of Columbus Avenue, between West 90th and West 91st Streets, in the Borough of Manhattan, City of New York. See Trinity Episcopal School Corp. v. Harris, 445 F.Supp. 204, 207 n.3 (S.D.N.Y. 1978). The area was to be developed in accordance with the West Side Urban Renewal Plan ("the Plan"), which had as its objective the rehabilitation of the area on an integrated basis both racially and economically. A detailed description of the Plan, its development and various amendments is set forth in the trial court's first opinion, Trinity Episcopal School Corp. v. Romney, 387 F.Supp. 1044 (S.D.N.Y. 1974).

An appeal from the decision approving the use of Site 30 for a low-income apartment building, which would be situated in a block containing other exclusively low-income buildings caused us to remand the case to the district court to ascertain from the Department of Housing and Urban Development (HUD) what consideration had been given to other alternatives ² so that "(t)hose who live (in the Area) and those who hope to live there (would be) entitled to obtain their housing aided by federal funds in a balanced and integrated community as envisaged by the Plan". We said: "The purpose of the Plan is integration not concentration" and "that purpose would not be achieved by concentrating low-income housing on West 91st Street . . . ." Trinity Episcopal School Corp. v. Romney, 523 F.2d 88, 94 (2d Cir. 1975). Accordingly, we remanded for the consideration by HUD of reasonable alternatives to the development of Site 30 as a 100 per cent low-income housing project "consistent with the scheme of the Plan."

On the remand, HUD produced a lengthy document, with many exhibits attached, entitled "Special Environmental Clearance of Department of Housing and Urban Development". It was filed with the district court on April 15, 1977. Thereafter defendants-appellees moved for summary judgment dissolving the injunction against building a 100 per cent low-income housing structure on Site 30 and dismissing the complaint. From the judgment dissolving the injunction and dismissing the complaint, plaintiffs-appellants appeal. The trial court's opinion is reported at 445 F.Supp. 204. A motion (F.R.Civ.P. § 60(b)) for correction of judgment was made by appellants and denied, from which denial plaintiffs-appellants also appeal.

Consideration of many of the environmental aspects relating to the construction of a 100 per cent low-income building on Site 30 which were treated in HUD's report (A 7-212) ³ is unnecessary. We remanded for the specific purpose of having "a study (made) by the appropriate agencies of possible 'alternatives' with respect to the present proposal to change the development of Site 30 to 100 per cent low-income housing." 523 F.2d at 95. We thought that "if attention is paid to the Plan and its purposes, the agencies with the cooperation of the interested parties should be able to arrive at an equitable solution". Our attention, therefore, must center on that portion of the HUD report which deals with "Impact on the Social Fabric and Community Structures" (Ex. 8, A 54) and "Notable Impacts and Alternatives" (A 67).

A survey by the City of nine undeveloped sites found that none were "appropriate alternatives". Amongst the reasons cited were that "(s) ubstantial delays would be imposed in relocating the development to another site" (A 67). The City's Housing and Development Administration (HDA) made additional comments as to three sites which it believed to be unacceptable. As to HDA's survey, the HUD report said "the City's evaluation of alternative sites seems incomplete. It did not address the possibilities of combining sites, of reparcelizing (Sic) sites, of dividing the 160-units committed to by HUD onto two of the redevelopment sites . . . ." (A 68). The report continued: "There are two alternative sites which are even more appropriate for the transfer of the proposed 160-unit development (perhaps with minimal design changes required) than those considered by the City" (A 68), namely, Sites 9 and 41. HUD stated that "(t)he City's most convincing reason in opposition to transfer of the project to an alternative site is the certainty of an additional long delay before construction could commence on any alternative site selected." (A 69). The added delay was estimated to be at least two years; whereas the HDA estimated that construction could start on Site 30 within six months. The City's need for low-income housing within the area was cited as an additional reason for retaining Site 30 for this purpose as well as possible litigation or protest by residents of the alternative areas.

As to Site 9, HUD found that "(f)rom the standpoint of social environmental impact, this location (Site 9) could be superior to Site 30 for the development of low-rent housing" and that at Site 9 "the total concentration would be smaller. . . ." (A 69). As to Site 41, HUD said that this site "is a very appropriate alternative site" but feared opposition from the residents of the area "although it appears to be quite a rational decision, within the context of the Plan and its objectives to facilitate an integrated community" (A 67). Despite these pro and con arguments, HUD came to the conclusion that "(m) easured against the environmental costs associated with the minimum two-year delay, the benefits seem insufficient to justify a mandated substitution of sites" (A 70). HUD also expressed the view that "(t)he continued inability of government to meet these needs (more low-rent housing for people of low income) would be considered an adverse environmental effect of transfer to another site" (A 69).

HUD, in dealing with the question of "Dispersal of Low Income Units on More Sites", stated:

"For example, attitudes of low-income and minority persons toward street life are frequently conditioned by the economic limitations on their mobility and by their cultural heritage. Their use of public space is often in conflict with the values of middle and upper-class people, mobile and able to spend leisure time away from home. Differing social and cultural attitudes about territoriality and privacy, acoustical as well as spatial, could fuel the tension which excessively close physical relationships between 'vest-pocket' projects and high-cost housing might generate." (A 71).

In its analysis, HDA has said that "(t)he high level of economic integration in the area, however, makes concern about additional public housing on Site 30 seem unwarranted." (A 113).

This statement would appear to be at variance with the facts as stated by the parties in their briefs which are to the effect that West 91st Street is presently lined with low-income housing.

The question which now arises is: what is the role of a federal appellate court at this stage of the proceedings?

In the report of HDA, the City's Housing Authority and the City Planning Commission, dated November 17, 1976 (A 82), a history of the WSURA Plan is set forth, including amongst other things, a statement that "(t)he objectives were to accommodate the housing needs of all residents of all income levels . . ." (A 88) and that "(t)he Urban Renewal Plan's objective is to create a racially and economically integrated community" (A 110). Apparently, because of the large numbers of low-income families living in sub-standard housing, the City changed these objectives. As a result, Site 30 was to be used for a 100 per cent low-income high-rise (17-story) apartment building.

In seeking the scope of our reviewing powers we must look to the Congressional source, the National Environment Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321 Et seq., and the Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A) (1976) which provides in part:

"The reviewing court shall

(2) hold unlawful and set aside agency action, findings, and conclusions found to be

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law . . . ."

The provisions of NEPA contain...