Aertsen v. Landrieu

• Decision Date: 11 December 1980
• Docket Number: No. 80-1206,80-1206
• Citation: 637 F.2d 12
• Parties: , 65 A.L.R.Fed. 103, 11 Envtl. L. Rep. 20,005 Guilliaem AERTSEN et al., Plaintiffs, Appellants, v. Moon LANDRIEU, etc. et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 12

637 F.2d 12

15 ERC 2124, 65 A.L.R.Fed. 103, 11

Envtl. L. Rep. 20,005

Guilliaem AERTSEN et al., Plaintiffs, Appellants, v. Moon LANDRIEU, etc. et al., Defendants, Appellees.

No. 80-1206.

United States Court of Appeals First Circuit.

Argued Sept. 9, 1980.

Decided Dec. 11, 1980.

Thomas B. Bracken, Boston, Mass., with whom J. Raymond Miyares and Bracken & Baram, Boston, Mass., were on brief, for plaintiffs, appellants.

Carolyn S. Grace, Asst. U. S. Atty., Boston, Mass., with whom Edward F. Harrington, U. S. Atty., Boston, Mass., was on brief, for defendants, appellees.

Jeffrey Swope, Boston, Mass., with whom Palmer & Dodge, Boston, Mass, was on brief, for appellee E.T.C. Development Corp.

Before COFFIN, Chief Judge, BOWNES, Circuit Judge, WYZANSKI, Senior District Judge. ^*

WYZANSKI, Senior District Judge.

This appeal raises questions as to whether in committing funds to finance a proposed housing project the United States Department of Housing and Urban Development (HUD) violated the National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852, 42 U.S.C. § 4321 et seq., or the Housing and Community Development Act of 1974 (the 1974 Housing Act), 88 Stat. 633 et seq., 42 U.S.C. § 5301 et seq., or regulations thereunder.

On December 21, 1978 the plaintiffs, residents of the South End of Boston, filed in the district court a complaint against the Secretary of the United States Department of Housing and Urban Development (HUD) and the Director of the Boston Redevelopment Authority (BRA). It alleged that HUD had committed funds to finance a proposed housing project known as Viviendas La Victoria (Victoria II) in the South End of Boston without complying with certain provisions of NEPA and the 1974 Housing Act and regulations thereunder. The plaintiffs chiefly ¹ complained that HUD had violated § 102(2)(C) of NEPA, 83 Stat. 853, 42 U.S.C. § 4332(2)(C) by not making with respect to Victoria II an Environmental Impact Statement (EIS), had violated § 102(2)(E) ² of NEPA, 83 Stat. 853, 42 U.S.C. § 4332(2)(E) by not studying, developing and describing appropriate alternatives to Victoria II, and had violated one of the purposes of the 1974 Housing Act set forth in § 101(c)(6) of that act, 88 Stat. 634-635, 42 U.S.C. § 5301(c)(6) and had violated regulations under that act, 24 C.F.R. § 800.112(c) and (d), recodified in 24 C.F.R. § 880.206(c) and (d). The complaint sought, in addition to a declaratory judgment, temporary and permanent injunctions to restrain the Secretary of HUD from financing Victoria II and to restrain the Director of BRA from taking demolition or other action in connection with the construction of Victoria II.

Jurisdiction of this case exists under the "federal question" provisions of 28 U.S.C. § 1331. Silva v. Lynn, 482 F.2d 1282, 1283 (1st Cir. 1973) and also under the Administrative Procedure Act §§ 702, 706. Ibid. See Strycker's Bay Neighborhood Council v. Karlen, 444 U.S. 223, 226, 100 S.Ct. 497, 499, 62 L.Ed.2d 433 (1980); Kleppe v. Sierra Club, 427 U.S. 390, 394 n.2, 96 S.Ct. 2718, 2722 n.2, 49 L.Ed.2d 576 (1976); Citizens To Preserve Overton Park v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971).

The parties on February 13, 1978 filed an Agreed Statement of Facts and a stipulation with respect to 78 documents which the parties asserted "comprise the administrative record in this case." The district court limited the additional evidence to testimony with respect to the relations between the defendants. In that court no party objected to any order limiting evidence, or moved to vacate any order or judgment on the ground that the court failed to afford a party an opportunity to present evidence.

The district court on March 27, 1979 filed an opinion, reported as Aertsen et al. v. Harris, 467 F.Supp. 117 (D.Mass.1979), containing findings which, so far as now material, were to the following effect.

In 1965, the Boston Redevelopment Authority of the City of Boston ("BRA") adopted the South End Renewal Plan ("The Plan"), which includes Reuse Parcel 19 Nos. 19A, 19B, 19C, PB-6, PB-7, PB-8, PB-11, R-6, R-6A and P-16 consisting of about 34 acres bounded generally by Tremont, Upton, Washington and West Newton Streets. The Plan aims at the rehabilitation of the area on an integrated basis both racially and economically and provides for the acquisition, clearance, and redevelopment of parcels within the area. In August, 1966 HUD approved the Plan by executing a Loan and Capital Grant Contract ("the Contract") with the BRA.

In 1969, BRA tentatively designated as the developer of Parcel 19 (heretofore described as Parcels 19A, 19B, and 19C) ETC Development Corp. (ETC), a business corporate affiliate of Inquilinos Boricuas en Accion, Inc. (IBA). IBA is a nonprofit, principally Hispanic, community development corporation, with the purpose of providing housing in the South End for low-income persons who would otherwise have been displaced by the Plan. ETC made a five-phase proposal: a residence for the elderly, two rehabilitation projects, and two housing projects for low-and middle-income families on land acquired from BRA.

Before 1976 HUD furnished financial assistance (a) to BRA for clearance and redevelopment and (b) to ETC for (1) construction of a 201 unit high-rise residence for the elderly, known as "Unidad Torres," (2) rehabilitation of 71 housing units on Tremont Street, (3) rehabilitation of 36 housing units, known as "Casas Boriquen," and (4) construction of 181 family housing units, known as "Viviendas la Victoria I." ³

Because it lacked funds in 1976, HUD then had no expectation of financing the fifth phase of ETC's proposal that is, a second housing project to be known as "Viviendas la Victoria II." ⁴

However, in fiscal year 1977 funds became available to HUD's Boston Area office for projects under § 8 of the United States Housing Act of 1937, as amended by title II of the Housing and Community Development Act of 1974, 88 Stat. 633, 662-666. In response to HUD's Notification of Fund Availability No. MA 06-0003, issued in April 1977, ETC submitted on June 15, 1977 a Preliminary Proposal to HUD for federal financial assistance to construct and operate the fifth phase of its original 1969 proposal: that is, a second housing project for low-and middle-income families.

That proposal is for a 207-unit housing project, to be known as Victoria II. It is to be built by ETC with financial assistance from HUD and on land acquired and provided by BRA principally on PB-8 and 19-B, between West Newton and West Brookline Streets on the west side of Victoria I, and on R-6, R-6A, and PB-6, on West Dedham Street on the east side of Victoria I and Unidad Torres. ⁵

As part of its consideration of that proposed project, HUD, pursuant to its regulations, prepared a Special Environmental Clearance (SEC) statement, dated July 21, 1978. It consists of a 4-page check-list, a 10-page narrative summary, and 14 appendices set forth in over 100 pages. ⁶ The SEC check-list states that HUD "determined that the completion of this project will not have any significant impact on the environment. Some of the anticipated residents will be from the surrounding environs. Therefore, it is not expected that there will be any influx into this area." The SEC narrative summary concluded that "it is not expected that the construction of Phase II of Viviendas la Victoria will have a significant impact on the South End nor change the community structure." The July 21, 1978 SEC, while it considered the environmental impacts of the construction of Victoria II, did not consider the environmental impacts of the demolition and site preparation necessary for that construction. ⁷

On the basis of the July 21, 1978 SEC, HUD on August 3, 1978 approved ETC's preliminary proposal and reserved $1,444,596 in annual rental subsidy contributions for Victoria II. As a result of that approval, ETC in November, 1978 applied to HUD for project mortgage insurance to enable ETC to obtain financing for Victoria II at an estimated construction cost of $8,445,000. On November 30, 1978 the Board of Directors of the BRA authorized the advertisement for a demolition and site clearance contract relative to the 15 buildings existing on the site for Victoria II. See footnote 5, supra. On December 19, 1978 BRA publicly advertised for bids to be received by January 10, 1979 for demolition of the existing buildings.

On March 27, 1979 the district court for reasons given in Aertsen et al. v. Harris, supra, temporarily enjoined HUD and BRA from demolition of the buildings now standing on the proposed site of Victoria II "pending the completion" of HUD's July 21, 1978 SEC so as to include the environmental impact of the demolition. On December 5, 1979 HUD filed a "Motion to Vacate Injunction of March 27, 1979 And To Dismiss." Attached was a Supplement, prepared November 1, 1979, to HUD's July 21, 1978 SEC. In substance, the motion was one for summary judgment. See the last sentence of F.R.Civ.P. 12(b). Cf. Karlen v. Harris, 590 F.2d 39, 42, col. 1, ll. 7-8 (2nd Cir. 1978), rev'd on other grounds sub nom. Strycker's Bay Neighborhood Council v. Karlen, 444 U.S. 223, 100 S.Ct. 497, 62 L.Ed.2d 433 (1980). The only affidavits the plaintiffs filed in opposition to the motion did not show that there was a "genuine issue as to any material fact." ⁸

Following the order of the counts of the complaint rather than the order of points in the brief, we consider, in turn, the plaintiffs' contentions that HUD's commitment of funds violates subsection (C) and subsection (D) of § 102(2) NEPA and the preamble of the 1974 Housing Act and HUD regulations pursuant thereto.

I. The Plaintiff's NEPA Contentions.

The plaintiffs contend that HUD was arbitrary and capricious in determining that Victoria II was not, within the meaning of § 102(2)(C) of NEPA, a major federal action significantly affecting the quality of the human environment (hereafte...