Jones v. Lynn
| Citation | 477 F.2d 885 |
| Decision Date | 22 March 1973 |
| Docket Number | No. 73-1057.,73-1057. |
| Parties | Benjamin JONES et al., Plaintiffs, Appellants, v. James T. LYNN et al., Defendants, Appellees. |
| Court | U.S. Court of Appeals — First Circuit |
Patrick J. King and Daniel D. Sullivan, Boston, Mass., with whom Robert Condlin, Cambridge, Mass., and Peter J. O'Connor, were on brief, for appellants.
Arthur G. Coffey, Asst. Gen. Counsel, Boston, Mass., with whom John C. Conley, Gen. Counsel, Boston, Mass., was on brief, for appellees, Boston Redevelopment Authority and others.
Frederic R. Kellogg, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., was on brief, for appellees, the Secretary of Dept. of Housing and Urban Development, and others.
John Paul Sullivan, Boston, Mass., with whom Lewis H. Weinstein, Boston, Mass., was on brief, for appellees, First Church of Christ Scientist.
Before COFFIN, Chief Judge, ALDRICH and CAMPBELL, Circuit Judges.
This appeal, expedited to accommodate all of the parties and interests involved, presents the issue whether a complex area renewal project covering a substantial sector of Boston, the Symphony Area part of the Fenway Urban Renewal Project, the basic planning and federal financial commitment for which had been approved in 1967, but which is yet substantially incomplete, is subject in any way to the requirements of the subsequently enacted National Environmental Policy Act of 1969 (NEPA), 42 U.S. C. § 4331 et seq.
Appellants, residents of the area, sought to enjoin further demolition and construction in the area until an environmental statement is issued in accordance with NEPA. Appellees are the Department of Housing and Urban Development (HUD), the source of federal financial assistance; the Boston Redevelopment Authority (BRA), the municipal agency in charge of the project; and the First Church of Christ, Scientist, a prominent occupant of the area and source of much of the planning.1 The district court denied injunctive relief, finding that "major federal action" terminated with the signing of the HUD-BRA Loan and Grant Contract in 1967, that HUD's continuing role was minor since it was powerless to alter future courses of action, and that NEPA was not intended to be applied retroactively.
Some appreciation of the past history and present status of the project is necessary to recognize the grey zone in which we endeavor to strike a just and practicable balance.
In the early 1960's the Church, desirous of establishing an International Center on its present location and of developing the adjacent Symphony Area, commissioned the preparation of a master plan which incorporated these ideas with others calling for residential and commercial development. The Church plan was submitted to BRA and included in BRA's larger proposed effort for development of the Fenway Area which was thereafter to consist of the Museum Area, Medical Center Area and the Symphony Area, all three sub-areas being of somewhat equal size and totalling 506 acres. Only questions relevant to the Symphony Area are before us. The entire Fenway Urban Renewal Plan, dated November 1, 1965, was approved by BRA on November 24, 1965; by the Boston City Council on December 20, 1965; by the Mayor of Boston on December 23, 1965; and by the Massachusetts Department of Commerce and Development on April 26, 1967 after the required public hearings. On December 22, 1967 HUD and BRA executed a Loan and Capital Grant Contract to provide federal assistance to this project pursuant to the Housing Act of 1949, 42 U. S.C. § 1450 et seq., which allows for a contractual relationship between a local public agency, here BRA, and the United States. The availability of federal assistance had been certified in compliance with the Housing Act only after HUD review of the program established that BRA had presented a "Workable Program for Community Improvement".
While the 1967 contract authorized BRA to sell project loan notes up to $14,488,759, a relocation grant of $719,-804 and a capital grant of $8,651,134, these sums were subsequently increased. On August 28, 1968 an amendatory contract added a rehabilitation grant of $12,000. More relevant here were an authorized increase in the amount of interest to be paid on temporary loan notes to be sold by BRA, the result of a June 24, 1970 amendment to the original contract; and an increased relocation grant to $5,660,424 and an increased current temporary loan authorization to $19,441,374, both the result of an August 11, 1972 amendment. Currently, approximately $1,866,000 out of an approved budget, exclusive of relocation funds, of some $13,769,000—which includes the original federal capital grant of over eight million dollars with the remainder coming from state and local funds—remains unexpended or unencumbered. Approximately $4,675,000 of the federally-provided relocation grant is similarly at BRA's disposal.
A survey of the state of the real estate is more understandable than a financial analysis of monies unexpended. There are 27 parcels and sub-parcels in the part of the project which is before us. From the documents in evidence, we distill the following status, which we list for further reference in groups:
Number
of
Group Parcels Present Status
I 4 —development wholly or nearly
completed (Nos. 2, 11
16A, 16B-1); no injunction
sought as to these
parcels
II 1 —site cleared; developer
tentatively selected; planned
for residence for the
elderly; no injunction
sought as to parcel (No
5). HUD will subject it
to a modified environmental
clearance procedure
III 3 —site cleared; developers
not selected for two parcels
(Nos. 6, 16B-2)
selected for the other (No.
3). As to this site HUD
will submit it to a modified
clearance procedure.
No. 6 has no final planned
purpose (except that it is
to be part residential and
part commercial); No.
16B-2 is planned for a
park; No. 3 is planned
for middle income housing
with HUD financing.
IV 5 —sites where no demolition
has yet occurred (Nos. 7,
9, 12, 13, 152). Nos. 7
and 15 are tentatively
planned to be rehabilitated.
Nos. 9, 12, and 13 are
planned for low and middle
income housing, with
HUD financing for at least
Nos. 9 and 13.
V 14 —no plans for acquisition or
use (Nos. 1, 4, 8, 10, 14,
17, 18, 19, 19A, 19B, 20,
21, 22, 23).
It is apparent that the parcels in groups IV and V and some or all of those in groups III, a total of from 19 to 22 of the project's 27 parcels, fall in the early stages of planning. Nevertheless, the entire project has been in the planning stage for some seven years and has been subject to numerous hearings and deliberations at various levels.
It is against this factual background that we endeavor to assess whether NEPA, enacted subsequent to the basic Loan and Capital Grant Contract, can be the source of any present obligation. We do not start with tabula rasa. The slate has been written on for some years. The question is whether there is at this time any requirement for a NEPA environmental statement—not the unrestricted analysis that might otherwise be expected if the project had not yet been launched, but a statement taking as a given those things which have been done in reliance on a preexisting plan.
We dispose without difficulty of appellees' contention that Congress intended to exempt from the application of NEPA pertinent projects simply because they had been previously decided upon. An environmental disturbance is no less consequential because of the date of its planning. If appellees are correct, the federal government is in a position where, once it has signed a multi-year contract providing for substantial funds for a project, it is proscribed from applying to that project the environmental analysis to which all other such contemporary projects are subjected, regardless of any flexibility that still might inhere in the planning process or of any feasible possibilities that may exist to achieve the same general goals with a more sensitive consideration of environmental factors.
Such a broad proposition finds no support in the statutes, regulations, legislative history or considerations of policy. While Congress could have specifically exempted approved but uncompleted projects from the requirements of NEPA, it did not do so. Neither did it make NEPA specifically applicable to such projects. But it did refer to the "continuing responsibility" of the federal government to "use all practical means . . . to improve and coordinate Federal plans, functions, programs and resources", 42 U.S.C. § 4331, and to act "to the fullest extent possible", 42 U.S.C. § 4332, to carry out the policies of the act. And the "major Federal actions", 42 U.S.C. § 4332(2)(C), proposals for which necessitate careful environmental review, include, in the words of the overseeing Council on Environmental Quality, "projects and continuing activities . . . supported in whole or in part through Federal contracts, grants, subsidies, loans, or other forms of funding...
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