BRENHAM CMUNTY. PROTECTIVE ASS'N v. DEPT. OF AGR., A-94-CA-317-SC.
| Decision Date | 24 July 1995 |
| Docket Number | No. A-94-CA-317-SC.,A-94-CA-317-SC. |
| Citation | 893 F. Supp. 652 |
| Parties | BRENHAM COMMUNITY PROTECTIVE ASSOCIATION, Plaintiff, v. UNITED STATES DEPARTMENT OF AGRICULTURE, et al., Defendant. |
| Court | U.S. District Court — Western District of Texas |
COPYRIGHT MATERIAL OMITTED
Booker T. Hogan, Jr., Law Offices of B.T. Hogan, Jr., Brenham, TX, for plaintiff Brenham Community Protective Ass'n.
Daria J. Zane, U.S. Dept. of Justice, Environmental and Natural Resources Div., Gen. Litigation Section, Washington, DC and Michaelyn Giebler, Office of Gen. Counsel, U.S. Dept. of Agriculture, Temple, TX, for defendants USDA, Farmers Home Admin., Neal Sox Johnson, and Robert Faris.
Robert E. Morse, III, Crain, Caton & James, Houston, TX, for defendants Larry C. Washburn and Brenham Rural Housing, Ltd.
The Court now considers Defendants Larry C. Washburn and Brenham Rural Housing, Ltd.'s Motion for Summary Judgment, filed January 18, 1995 (Doc. # 52) and Federal Defendants' Motion for Summary Judgment, filed February 15, 1995 (Doc. # 68). All parties consented to this Court's jurisdiction under 28 U.S.C. § 636(c).
As the discussion below details, the Court finds that Defendants are entitled to judgment as a matter of law on the first two causes of action in Plaintiff's complaint. The Court will consider in a separate order Federal Defendants' Motion for Summary Judgment on the third cause of action.
Brenham Community Protective Association (BCPA or Plaintiff)1 is a non-profit organization, incorporated under the Texas Non-Profit Corporation Act. Plaintiff's membership includes persons owning property in the Alcorn Addition to the City of Brenham.
Defendant Larry C. Washburn is a general partner in co-defendant Brenham Rural Housing, Ltd., a limited partnership (BRH; hereafter, Washburn and BRH are referred to as Private Defendants). On January 22, 1990, BRH filed a Preapplication for Federal Assistance with defendant Farmers Home Administration (FmHA), an agency of defendant Department of Agriculture (DoA), to finance an FmHA Section 515 Plan II senior citizen apartment complex. See Administrative Record (AR), Item 2. Private Defendants sought an FmHA loan to build a forty-four unit complex near property owned by members of plaintiff BCPA.
As part of the preapplication process, Private Defendants completed Form FmHA 1940-20, "Request for Environmental Information." See AR, Item 11. As required by regulations governing the National Environmental Protection Act (NEPA), 42 U.S.C. § 4321 et seq., promulgated by the Council on Environmental Quality (CEQ), 40 C.F.R. § 1508, and Farmers Home Administration, 7 C.F.R. § 1940.312(a)(1), FmHA prepared an Environmental Assessment (EA). FmHA consulted with the Brazos Valley Development Council and the Texas Historical Commission during this process. See AR, Items 5, 12, and 14.
On August 30, 1990, Defendant Robert H. Faris (Faris), District Director for FmHA District Fourteen (which includes Brenham), recommended approval of a thirty-two unit elderly complex in Brenham, TX. See AR, Item 15. This recommendation included a review of the Private Defendants' eligibility, the project's feasibility, and the potential priority for loan funds pursuant to 7 C.F.R. § 1944.231. Faris personally inspected the site and found no potential environmental impacts, "such as wet-lands sic, flood plains, prime or unique farm lands, or other sensitive environmental features." See AR, Item 15. Upon review of a professional market survey conducted by a third party, Faris found a need for thirty-two Rental Assistance units2 (as opposed to the forty-four units sought by Private Defendants) in Brenham. Faris found that the Market Survey complied with FmHA Exhibit A-6, II B-H, and Exhibit A-7. See AR, Item 15.
On July 26, 1991, Private Defendants requested ten additional Rental Assistance units for the complex. See AR, Item 18. On July 29, 1991, after reviewing the market study and conducting personal interviews, Director Faris found a need for forty Rental Assistance units, thus recommending FmHA provide rental assistance for 90% of the proposed elderly complex. See AR, Item 19.
Private Defendants then filed a formal application for federal assistance on August 12, 1991. See AR, Item 20. FmHA issued a Finding of No Significant Impact (FONSI)3 on September 12, 1991. The agency published notice of the FONSI in the Brenham Banner-Press, the local newspaper, on September 9, 10, and 11, 1991. See AR, Items 22 and 23. On October 17, 1991, District Director Faris recommended approval of a Section 515 Loan for the entire forty-four unit project. See AR, Item 26.
However, beginning in September, 1991, members of the Brenham community began expressing opposition to the senior citizen complex. Brenham's Mayor Pro Tempore wrote FmHA State Director Neal Sox Johnson (a Defendant) and relayed to him concerns of local community members, noting that seventy-eight people had signed a petition opposing construction of the complex next to their neighborhood. See AR, Item 24.
As a result of this and many other written comments opposing the plan, FmHA decided to hold a public information meeting pursuant to 7 C.F.R. § 1940.318(e). FmHA chose this forum to allow citizens the opportunity to discuss the proposed development prior to final action on the loan. See AR, Item 36. FmHA held the meeting on December 16, 1991. Defendant Larry C. Washburn, several representatives of FmHA, the Mayor of Brenham, and a member of the Brenham City Council attended, as did 50 citizens of the community. See AR, Item 40. The citizens expressed their concern about the effects of placing such a development in their neighborhood, such as increased crime and increased problems with drugs. They pointed to similar problems accompanying the five low income housing projects in Brenham sponsored by the Department of Housing and Urban Development4 (HUD).
Defendants noted the concerns of the housing opponents. The FmHA representatives at the meeting recommended that a thorough review of all findings precede the final environmental determination and the final decision whether to grant a loan. See AR, Item 40.
Private Defendants formally applied again for a Rural Rental Housing Section 515 loan on December 28, 1991. See AR, Item 43. Meanwhile, FmHA prepared an Addendum to its Environmental Assessment in an effort to address the concerns raised at the public meeting. See AR, Item 46. The AR dates the Addendum April 16, 1992. Issues addressed by the document include:
Based on the original Environmental Assessment (EA) and its Addendum, FmHA confirmed its Finding of No Significant Impact (FONSI). FmHA had the FONSI published in the Brenham Banner-Press on June 2, 1992. See AR, Item 54.
On June 4, 1992, District Director Faris recommended approval of the FmHA loan. See AR, Item 53. FmHA approved the loan June 17, 1992, for $1,131,000.00. See AR, Item 58.
Members of the community opposed to this development did not give up despite approval of the loan. Opponents of the complex wrote their congressional representatives5; senators6; state representative7; the State Director of the Farmers Home Administration, M.J. Pena; and even Henry Cisneros, Secretary of Housing and Urban Development, to express their concerns and to block construction of the project. (The Administrative Record does not show whether Plaintiff's representatives contacted the Secretary of Agriculture, the cabinet officer who would have authority over FmHA.) Community members presented a petition, with seventy-six signatures, opposing construction of the project to various officials. See AR, Item 64.
Believing it had exhausted all administrative options, Plaintiff Brenham Community Protective Association filed suit May 4, 1994. Plaintiff's complaint states the following causes of action:
As a result of several previous procedural orders, Private Defendants are not parties to Counts II and III. In addition to seeking declaratory relief, Plaintiff asks the court to enjoin the DoA and FmHA from funding the apartment complex and to enjoin permanently all defendants from beginning or continuing construction of the development in question. Plaintiff also seeks attorney's fees and costs.
All parties consented to the jurisdiction of the United States Federal Magistrate Court to proceed over all aspects of this trial, pursuant to 28 U.S.C. § 636(c), on November 14, 1994. Defendants FmHA, DoA, Neal Sox Johnson, and Robert Faris (the Federal Defendants) filed a motion for summary judgment as to Count III October 17, 1994.8 The Federal Defendants later filed a motion for summary judgment on the remaining causes of action contained in the complaint on February 15, 1995. Private Defendants filed a similar motion for summary judgment on January 18, 1995. The Court heard arguments from all parties on these motions June 8, 1995.
Plaintiff seeks to set aside a federal agency action under Section Ten of the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706. The APA provides that federal courts should uphold actions by a federal agency...
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