Crosby v. Young, Civ. A. No. 81-70844.

Decision Date24 April 1981
Docket NumberCiv. A. No. 81-70844.
Citation512 F. Supp. 1363
PartiesLouise CROSBY, Carol Dockery, Elisha Hearn, Richard Hodas, Bernice and Henry Kaczynski, and Ann Locklear, Plaintiffs, v. Coleman A. YOUNG, Mayor of the City of Detroit, Detroit Economic Development Corporation, City of Detroit, City of Hamtramck, Samuel R. Pierce, Jr., Secretary of Housing and Urban Development, and General Motors Corporation, Defendants.
CourtU.S. District Court — Western District of Michigan

COPYRIGHT MATERIAL OMITTED

Bruce J. Terris, Terris & Sunderland, John Cary Sims, Washington, D. C., Hugh M. Davis, Jr., Detroit, Mich., for plaintiffs.

William G. Christopher, Honigman, Miller, Schwartz & Cohn, Joseph M. Baltimore, City of Detroit, Asst. Corp. Counsel, Detroit, Mich., for defendants Coleman A. Young, Mayor of Detroit, City of Detroit, and Corinne Gilb, City Planning Commission.

Eric Lee Clay, Detroit, Mich., for Detroit Economic Development Corp.

George Matish, Detroit, Mich., Aloysius J. Suchy, Harper Woods, Mich., for City of Hamtramck.

David Maurer, Asst. U. S. Atty., Detroit, Mich., for Samuel R. Pierce, Jr., Secretary of Housing & Urban Development.

Ronald S. Holliday, Detroit, Mich., for General Motors Corp.

OPINION

FEIKENS, Chief Judge.

This case is before me for the resolution of three claims brought pursuant to the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. §§ 4321 et seq. First, plaintiffs claim that Detroit and Hamtramck failed to consider alternatives to the proposed Central Industrial Park ("CIP"), contrary to the statutory requirements of Section 4332(2)(C)(iii). Next, it is plaintiffs' contention that the Department of Housing and Urban Development ("HUD") authorized the release of Section 108 loan guarantee funds before the final environmental impact statement ("EIS") was prepared, thus contravening the purpose of NEPA as expressed in Section 102. Finally, plaintiffs argue that the delegation of authority to a grant or loan applicant, here Detroit and Hamtramck, by the Department of Housing and Urban Development is improper under the statute and that the HUD regulations that permit this delegation are in violation of NEPA.

BACKGROUND
State Litigation

General Motors Corporation ("GM") announced in the spring of 1980 that it would close its Cadillac plant and Fisher Body plant in 1983. GM also announced, however, the construction of a new automobile plant and expressed a desire to build it in Detroit if a suitable site could be located. Coleman Young, Detroit's Mayor, began an aggressive campaign to convince GM that a site could be found and worked hard to keep the automobile manufacturer in the City. During the next several months, Detroit analyzed numerous areas to determine if there would be an appropriate place to locate the plant. It finally focused on the old Dodge Main site, located on the border of Hamtramck and Detroit. However, for this site to be large enough to encompass a modern plant, approximately 100 acres of residential and commercial land needed to be acquired from an area that had become known as Poletown. On October 31, 1980, the Detroit City Council approved the location of the CIP in the Detroit/Hamtramck area. (Sheldon Affidavit, Attachment 34).

Poletown Neighborhood Council, an unincorporated association of approximately 300 residents, and ten individuals thereupon initiated an action in the Wayne County Circuit Court on October 31, 1980, by petitioning for a temporary restraining order to enjoin Detroit and the Detroit Economic Development Corporation ("DEDC") from proceeding with the condemnation of the Poletown properties. (Sheldon Affidavit, Attachment 35). The injunction was denied and an expedited hearing was scheduled for November, 1980 before the Honorable George Martin, a state circuit court judge. Detroit commenced negotiations with the Poletown property owners for acquisition of their property and began condemnation proceedings of those parcels that their owners were unwilling to sell.

At the hearing in the Wayne County Circuit Court, plaintiffs challenged the constitutionality of the Michigan Quick Take Statute, M.C.L.A. 213.51 et seq., and the Economic Development Corporations Act, M.C.L.A. 125.1601 et seq. The hearing centered on whether Detroit abused its discretion in determining that the condemnation proceedings were for the public necessity. Judge Martin concluded that the legislature, in authoring the Economic Development Corporations Act, "specifically contemplated the exercise of the sovereign power of eminent domain for economic development projects including industrial parks."1 (Defendant Detroit Economic Development Corporation's Memorandum of Points and Authorities in Support of Motion for Summary Judgment, Exhibit B, p. 12). Judge Martin also concluded that the Michigan laws were constitutional because the power of eminent domain is justified when property is taken for a public purpose, that the notion of a public purpose is not a static definition but, rather, an evolving doctrine, and that the public purpose is served because the condemnation is necessary for Detroit and DEDC to "alleviate and prevent conditions of unemployment". Id., p. 14.

Plaintiffs appealed directly to the Michigan Supreme Court on two issues. First, the constitutionality of the Economic Development Corporations Act was challenged on grounds that it permitted a taking of private property by a governmental agency for a private purpose. The second claim alleged that the Michigan Environmental Protection Act, M.C.L.A. 691.1201 et seq., was violated because Poletown is a "protected natural resource". Pending decision, the Michigan Supreme Court enjoined Detroit from taking any further action with regard to the acquisition and condemnation of property in Poletown. The Court then upheld the constitutionality of the statute by a 5-2 vote, stating that a public purpose could include the creation of jobs and revitalization of the economy. Additionally, the Court concluded that the Michigan Environmental Protection Act applied to natural resources, such as air, water, vegetation, and other biological or geological resources, and did not encompass the "social and cultural environment". (Defendant Detroit Economic Development Corporation's Memorandum of Points and Authorities in Support of Motion for Summary Judgment, Exhibit C). When the Court filed its opinion on March 13, 1981, the stay was lifted and Detroit was able to resume the condemnation of property in Poletown. Title to the last of the properties was acquired by Detroit on March 27, 1981.

Federal Litigation

Seven individuals who are Poletown residents filed suit in this court on March 17, 1981, setting forth the three previously described claims for relief under NEPA. Initially, plaintiffs sought a preliminary injunction against defendants to prevent demolition of property that had been acquired by Detroit and, further, to enjoin its acquisition of parcels to which title had not yet been passed. A conference was held March 24, 1981 on the record, at which all parties were present. I decided that the defendants should have an opportunity to file pretrial motions until Monday, March 30, and the hearing on all motions was scheduled for April 1, 1981.

Plaintiffs stipulated to the dismissal of defendants Corinne Gilb, since she acted as an agent of Mayor Young, and the Detroit City Planning Commission, because it did not participate in the preparation of the environmental impact statement. On April 1, I heard motions for summary judgment by Detroit, the Detroit Economic Development Corporation, and Samuel Pierce, Secretary of the Department of Housing and Urban Development, on all three counts. Defendant General Motors moved to dismiss the claims against it since it has no obligations pursuant to NEPA. I denied the latter motion because GM has been intimately involved with the facts leading to this lawsuit and it would be necessary to incorporate them into any resolution of this dispute. Since all parties agreed that Counts II and III could be decided as matters of law, I have done so in this opinion. The parties also agreed that I could review the state testimony, affidavits and attached exhibits as part of this record. I decided to take the motions for summary judgment on Count I under advisement and proceed with the taking of testimony not only to complete the record but also to decide Count I on the merits. My purpose in taking testimony was to effectuate a final decision in an atmosphere that indicated that time was of the essence. Over forty hours of testimony were taken in nine days.

I.
A. The Environmental Impact Statement

Plaintiffs' first claim alleges that defendants failed to analyze all reasonable and feasible alternatives to the CIP project in the environmental impact statement. They contend that this constitutes a violation of NEPA, particularly § 4332(2)(C)(iii) and § 4332(2)(E).2 Plaintiffs have argued that the use of structured or rooftop parking; relocations of the water retention pond, the railroad marshalling yards and the automobile haulaway yard; and re-siting of the power plant would result in the use of a smaller site and, therefore, retention of many of the homes and businesses in Poletown.

The purpose of an environmental impact statement has been stated in Calvert Cliffs' Coordinating Committee, Inc. v. United States Atomic Energy Commission, 449 F.2d 1109 (D.C.Cir.1971). The court stated:

This requirement 42 U.S.C. § 4332(D), renumbered § 4332(E), like the "detailed statement" requirement, seeks to ensure that each agency decisionmaker has before him and takes into proper account all possible approaches to a particular project (including total abandonment of the project) which would alter the environmental impact and the cost-benefit balance. Only in that fashion is it likely that the most intelligent, optimally beneficial decision will ultimately be made. Moreover, by compelling
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