US v. 27.09 Acres of Land, 88 Civ. 1805(MEL)

• Decision Date: 15 May 1990
• Docket Number: No. 88 Civ. 1805(MEL),88 Civ. 2070(MEL).,88 Civ. 1805(MEL)
• Citation: 737 F. Supp. 277
• Parties: UNITED STATES of America, Plaintiff, v. 27.09 ACRES OF LAND, MORE OR LESS SITUATED IN the TOWN OF HARRISON AND the TOWN OF NORTH CASTLE, COUNTY OF WESTCHESTER, STATE OF NEW YORK; The County of Westchester; and Unknown Others, Defendants. PURCHASE ENVIRONMENTAL PROTECTION ASSOCIATION, INC., and Allan Stone, Plaintiffs, v. The UNITED STATES POSTAL SERVICE, and Anthony Frank, as Acting Postmaster General of the United States, Defendants.
• Court: U.S. District Court — Southern District of New York

737 F. Supp. 277

UNITED STATES of America, Plaintiff, v. 27.09 ACRES OF LAND, MORE OR LESS SITUATED IN the TOWN OF HARRISON AND the TOWN OF NORTH CASTLE, COUNTY OF WESTCHESTER, STATE OF NEW YORK; The County of Westchester; and Unknown Others, Defendants.

PURCHASE ENVIRONMENTAL PROTECTION ASSOCIATION, INC., and Allan Stone, Plaintiffs, v. The UNITED STATES POSTAL SERVICE, and Anthony Frank, as Acting Postmaster General of the United States, Defendants.

Nos. 88 Civ. 1805(MEL), 88 Civ. 2070(MEL).

United States District Court, S.D. New York.

May 15, 1990.

Otto G. Obermaier, U.S. Atty., S.D.N.Y., New York City, for plaintiff U.S.; Helen M. Toor, Diana Hassel, Asst. U.S. Attys., of counsel.

Marilyn J. Slaaten, Westchester County Atty., White Plains, N.Y., for defendant County of Westchester; Susan B. Owens, Asst. County Atty., of counsel.

Sidley & Austin, New York City, for plaintiffs Purchase Environmental Protective Ass'n, Inc. and Allan Stone; Donald W. Stever, Mark Rachlin, Robert F. DiUbaldo, of counsel.

Arthur M. Schreier, Village Atty., Village of Harrison, N.Y., for proposed intervenors, Town of Harrison and Village of Harrison.

LASKER, District Judge.

These actions involve local opposition to the United States Postal Service's (the "Postal Service") condemnation of 23.24 acres of land (the "County parcel") belonging to Westchester County ("the County") and the Postal Service's potential condemnation of a portion of a 10.1 acre parcel owned by New York State (the "State parcel") for the construction of a large new General Mail and Vehicle Maintenance Facility ("the Facility") to replace existing facilities in Mount Vernon and White Plains, New York. The two parcels (collectively the "Airport site") are located in the Towns of Harrison and New Castle and are adjacent to the Westchester County Airport. The Postal Service has signed but has not filed a declaration of taking with respect to the State parcel.

Purchase Environmental Protective Association, a nonprofit group of more than 200 homeowners and merchants located near the Airport site, and Allan Stone, a member of the group and resident of Purchase (collectively "PEPA"), and the Town of Harrison and the Village of Harrison, New York (collectively "Harrison"), move to intervene in the condemnation action against the County parcel (the "County parcel action"). PEPA, as proposed defendant-intervenor, and the County also move for partial summary judgment,¹ or, in the alternative, for a preliminary injunction barring the condemnation of the County parcel until full compliance with the National Environmental Protection Act ("NEPA"), 42 U.S.C. § 4332, and various Postal Service regulations has been achieved. The Postal Service cross-moves to strike the second, fourth, seventh, eighth and eleventh affirmative defenses raised by the County, or, in the alternative, for summary judgment.

In the action instituted by PEPA to bar condemnation of the state parcel (the "State parcel action"), PEPA moves for partial summary judgment on counts I, III and VI of the complaint or for a preliminary injunction barring any further steps towards condemnation, based on the same grounds as its motion in the County parcel action. The Postal Service moves to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) on ripeness and mootness grounds, or for summary judgment. Harrison moves to intervene.

BACKGROUND

In 1982 the Postal Service began evaluating sites for a new facility to replace its existing General Mail Facility ("GMF") in Mount Vernon, New York. The Postal Service had concluded that the Mount Vernon facility would not be able to handle a projected rapid rise in the volume of the County's mail (which now accounts for 1.5 percent of all mail in the United States) and that it lacked easy access to major transportation routes. Over the next few years several sites were evaluated according to specific criteria developed in a Preferred Area Environmental Assessment prepared for the Postal Service.

By November 1987 the Postal Service had decided to look for a site that would also be large enough to accommodate a new Vehicle Maintenance Facility ("VMF") to replace its existing facility in White Plains. On January 6 and 8, 1988, the Postal Service published in the Reporter Dispatch, a Westchester newspaper, notice of its intention to prepare an Environmental Assessment ("EA") for the Airport site. On February 19, 1988 a completed EA was issued which stated that, as a result of field studies and a review of environmental data on the site, "significant environmental impacts are not anticipated which cannot be mitigated. Therefore, an Environmental Impact Statement is not warranted."² The required 90 day period for public comment on the EA was to have run through May 4, 1988.

On February 23, 1988, four days after the EA was prepared, Deputy Postmaster General Michael S. Coughlin signed declarations of taking for the two parcels. On March 16, 1988, prior to the expiration of the public comment period for the EA, the Postal Service condemned the County parcel. PEPA then instituted suit against the Postal Service, seeking a temporary restraining order and preliminary injunction prohibiting condemnation of the State parcel until the Postal Service completed the NEPA review process. PEPA and Harrison also filed motions to intervene in the County parcel action.³ The litigation was stayed by consent of the parties while the Postal Service considered alternative sites for the facility. However, on December 23, 1988, the Postal Service prepared a new EA for the Airport site, and set a new comment period to run from January 1, 1989 to April 1, 1989.⁴ The present motions were made between January and March 1989, and the original motions to intervene were renewed at that time.

In the fall of 1989 Congress passed a bill restricting funding for the facility until February 1, 1990 and requesting that the Postal Service report back to the Appropriations Committee as of that date regarding possible alternative sites. Pursuant to this legislation, Representative Nita Lowey appointed an independent Citizens Advisory Committee on Site Selection (the "Advisory Committee") which worked with a consultant retained by the Postal Service to identify and evaluate alternatives to the Airport Site. On January 8, 1990 the Advisory Committee recommended three alternate sites for consideration by the Postal Service. However, the Postal Service submitted detailed objections to all of the sites recommended by the Advisory Committee and recently issued a revised EA for the Airport site, for which the public comment period expired on April 25, 1990.

I. THE NEPA CLAIM

The principal issue in the motions for partial summary judgment and the cross-motion to strike certain defenses is one of first impression in this circuit: whether the Postal Service must complete and fully comply with the NEPA environmental review process before condemnation. PEPA argues that the Postal Service's conceded failure to complete the NEPA review process prior to signing a declaration of taking on the State parcel and condemning the County parcel require that those legal actions be voided, or in the alternative, that no further actions be taken towards condemnation. According to PEPA, the Postal Service's attempted condemnation of the Airport site represents a commitment of resources (the estimated value of the State and County parcels is close to ten million dollars) towards construction of the facility which precludes unbiased consideration of less environmentally damaging alternative sites and predetermines the outcome of the NEPA review process prior to the incorporation and full review of public comments on the EA.

The relevant NEPA provision, 42 U.S.C. § 4332, states in pertinent part:

The Congress authorizes and directs that, to the fullest extent possible (2) all agencies of the Federal Government shall—

. . . . .

(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on—

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and

(v) any irreversible and irretrievable commitments of resources which should be involved in the proposed action should it be implemented.

. . . . .

(E) study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.

Implementing regulations require that with regard to a "major federal action," that will significantly affect the environment, a federal agency must prepare an Environmental Assessment ("EA") to determine if a more comprehensive study, an Environmental Impact Statement ("EIS") should be prepared or if a finding of no significant impact on the environment ("FONSI"), is appropriate.⁵

The Postal Service concedes that it must comply with the requirements of NEPA because construction of the proposed facility constitutes a "major federal action," and that its actions to condemn the site were taken prior to completion of the public comment period for the EA, but asserts that compliance need not precede condemnation or the issuance of a declaration of taking.

PEPA argues that the Postal Service violated § 4332(C) by failing to complete preparation of an EA (including the incorporation of public comments), issue a formal FONSI and consider alternatives prior to condemning the County parcel and signing a declaration of taking with respect to the State parcel, thereby failing to allow meaningful public commentary as mandated by NEPA....