LSS LEASING v. US General Services Admin.

• Decision Date: 16 February 1984
• Docket Number: No. 83 Civ. 6952 (GLG).,83 Civ. 6952 (GLG).
• Citation: 579 F. Supp. 1565
• Parties: L.S.S. LEASING CORP.; Corona Taxpayers Civic Association, Inc.; Parent Teachers Association of P.S. 14; American Legion Post 298; Sherwood Village Cooperative A, Inc.; Sherwood Village Cooperative B, Inc.; Sherwood Village Cooperative C, Inc.; Sherwood Village Cooperative D, Inc.; 6 Brothers Restaurant & Pizza, Inc.; Quality Donuts, Inc.; 58-01 Junction Food Corp.; Halkios Restaurant Corporation; Norma Cirino; and Donald Mallozzi, Plaintiffs, v. UNITED STATES GENERAL SERVICES ADMINISTRATION; Gerald P. Carmen, as Administrator of the General Services Administration; William J. Diamond, as Regional Administrator, Region 2 of the General Services Administration; United States Social Security Administration; Martha McSteen, as Acting Commissioner of the Social Security Administration; Peter P. DiSturco, as Regional Commissioner, Region 2 of the Social Security Administration; United States Department of Health and Human Services: Margaret M. Heckler, as Secretary of the United States Department of Health and Human Services, Defendants.
• Court: U.S. District Court — Southern District of New York

579 F. Supp. 1565

L.S.S. LEASING CORP.; Corona Taxpayers Civic Association, Inc.; Parent Teachers Association of P.S. 14; American Legion Post 298; Sherwood Village Cooperative A, Inc.; Sherwood Village Cooperative B, Inc.; Sherwood Village Cooperative C, Inc.; Sherwood Village Cooperative D, Inc.; 6 Brothers Restaurant & Pizza, Inc.; Quality Donuts, Inc.; 58-01 Junction Food Corp.; Halkios Restaurant Corporation; Norma Cirino; and Donald Mallozzi, Plaintiffs, v. UNITED STATES GENERAL SERVICES ADMINISTRATION; Gerald P. Carmen, as Administrator of the General Services Administration; William J. Diamond, as Regional Administrator, Region 2 of the General Services Administration; United States Social Security Administration; Martha McSteen, as Acting Commissioner of the Social Security Administration; Peter P. DiSturco, as Regional Commissioner, Region 2 of the Social Security Administration; United States Department of Health and Human Services: Margaret M. Heckler, as Secretary of the United States Department of Health and Human Services, Defendants.

No. 83 Civ. 6952 (GLG).

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

February 16, 1984.

COPYRIGHT MATERIAL OMITTED

Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., New York City, Frederick A.O. Schwarz, Jr., Corp. Counsel for the City of New York by Patricia R. Kruger, Asst. Corp. Counsel, for defendants; Kathleen A. Roberts, Asst. U.S. Atty., New York City, of counsel.

Berle, Butzel, Kass & Case, New York City, for plaintiffs; Stephen L. Kass, Robert S. Davis, Carol A. Buckler, New York City, of counsel.

OPINION

GOETTEL, District Judge.

At issue in this case is the Queens Federal Building now under construction in Jamaica, New York, and whether the federal government has complied with the requirements of the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq. (1976), and with its own administrative procedures as outlined in the Public Buildings Act of 1959 ("PBA"), 40 U.S.C. § 606 (1976). Before the Court is a motion in which the plaintiffs seek a preliminary injunction barring the defendants from proceeding with the planning and construction of the building pending a final determination of their suit. For the reasons discussed below, the plaintiffs' request for a preliminary injunction is denied.

BACKGROUND

In 1978, Congress directed defendant General Services Administration ("GSA") to study the need for a new federal office building in Queens. The building would house the offices of the approximately 2,500 employees of the Social Security Administration's Northeastern Program Center (the "Center") which was then located in four separate buildings, two of which are owned by plaintiff L.S.S. Leasing Corp. ("L.S.S."), and leased to the government. The subsequent GSA study found that because of the fragmented office space the Center was not operating as efficiently as it could operate if it were located in one building. The GSA also determined that a single location was required for the efficient use of the kind of sophisticated systems and electronic equipment that had improved efficiency at other Program Centers. As a result, the GSA recommended the construction of a new building, to be known as the Queens Federal Building.

The site selected for the building was in that section of Queens known as Jamaica. The construction of the Queens Federal Building would become a part of the Jamaica Center Development Plan, a master plan for the revitalization of that economically depressed area. In addition to the Queens Federal Building, the master plan called for the construction of a new facility for York College, the Queens County Civil Court, the Jamaica Arts Center, two million square feet of other office space, two subway stations (one adjacent to the building at issue in this case), and parking garages.

In 1980, the Senate and House Public Works Committees approved the new building and the GSA held the required public hearings which were a part of the process by which the environmental impact statement ("EIS") for the building was drawn up. L.S.S. actively opposed the new building before the Congressional committees and at the public hearings held by the GSA. In 1981, a Final Environmental Impact Statement ("FEIS") was filed and a copy was sent to L.S.S.

Once the FEIS was issued, the GSA went ahead with the project, awarding a $3 million design contract, purchasing the site for $750,000, and awarding a $60 million construction contract. Excavation at the site has already started, and some $500,000 has been spent. The total cost of the project is nearly $93 million and it is expected to be completed in August 1986.

In addition to L.S.S., the present landlord, the plaintiffs include three civic organizations,¹ four neighborhood cooperative apartment corporations,² two individual homeowners,³ and four neighborhood businesses.⁴ The plaintiffs contend that a preliminary injunction is appropriate because they would suffer irreparable harm if work on the project was allowed to continue and because they have demonstrated a substantial probability of success on the merits of their substantive claims that the defendants have violated NEPA, PBA and Executive Order 12411, which requires federal agencies to reduce the amount of workspace per employee. The plaintiffs also contend that they have raised serious questions that merit litigation and that the balance of hardships tips decidedly in their favor. Each of the plaintiffs' contentions will be taken up in detail in the discussion that follows.

DISCUSSION

It is well-established that before a preliminary injunction can be issued, the movant must clearly show (1) irreparable harm and (2) either a likelihood of success on the merits or sufficiently serious questions going to the merits and a balance of hardships tipping decidedly toward the moving party. Bell & Howell: Mamiya Co. v. Masel Supply Co., 719 F.2d 42, 45 (2d Cir.1983); Union Carbide Agricultural Products Co. v. Costle, 632 F.2d 1014, 1017 (2d Cir.1980), cert. denied, 450 U.S. 996, 101 S.Ct. 1698, 68 L.Ed.2d 196 (1981); Caulfield v. Board of Education, 583 F.2d 605, 610 (2d Cir.1978); Triebwasser & Katz v. American Telephone & Telegraph Co., 535 F.2d 1356, 1358 (2d Cir.1976); Sonesta International Hotels Corp. v. Wellington Associates, 483 F.2d 247, 250 (2d Cir.1973); Chelsea Neighborhood Association v. United States Postal Service, 389 F.Supp. 1171, 1185 (S.D.N.Y.), aff'd, 516 F.2d 378 (2d Cir.1975).

In addition to these tests, where the public interest is involved, "more than a `fair ground for litigation' must be shown before the action will be stopped in its tracks by court order." Union Carbide, supra, 632 F.2d at 1018. "Where the grant of interim relief may adversely affect the public interest in a manner which cannot be compensated for by an injunction bond, plaintiffs undertake an even greater burden of persuasion." Medical Society of New York v. Toia, 560 F.2d 535, 538 (2d Cir.1977) (citing Yakus v. United States, 321 U.S. 414, 440-41, 64 S.Ct. 660, 674-75, 88 L.Ed. 834 (1944)).

There is little doubt that the Queens Federal Building is a project affecting the public interest. First, because an estimated $4.5 million of the $93 million cost of the building has already been spent, the value of that expenditure would be diluted or lost entirely if the project was stopped. Second, the government estimates that it would cost approximately $166,000 to stop and restart work at the site and that the cost of the project would increase by $19,000 per day for each day that work was halted. Third, stopping the project would also affect the development of Jamaica Center, of which the Queens Federal Building is an important part.⁵ Given all these considerations, it appears that the public nature of the project requires the plaintiff to show (1) the possibility of irreparable harm, and (2) the more stringent test of likelihood of success on the merits. Union Carbide, supra, 632 F.2d at 1018; Toia, supra, 560 F.2d at 538.

A. The Possibility of Irreparable Harm

The plaintiffs have failed to show that unless the project is immediately stopped they will be irreparably harmed. The Queens Federal Building is scheduled for completion in mid-1986, which is some two-and-a-half years distant, even assuming that there are no construction delays. Two-and-a-half years is more than enough time for the parties to litigate the issues presented in this action and for landlord L.S.S. to line up new tenants for the space the government plans to vacate. Once L.S.S. re-leases the space, the complaints of the other plaintiffs should also be resolved.

The plaintiffs rely on Chelsea, in support of their proposition that a preliminary injunction should be granted. Chelsea, however, is clearly inapposite because the garage at issue there was to be built within the neighborhood whose residents were challenging it and the "letting of a contract for construction was imminent." Chelsea, supra, 389 F.Supp. at 1186. The impact on the plaintiffs in Chelsea would have been direct and immediate. Once construction started, it would have been very hard to stop. Here, the situation is very different: construction of the Queens Federal Building would affect the plaintiffs indirectly — plaintiff L.S.S. would still have its buildings to lease to others, and plaintiff homeowners, civic associations and business people would still have, respectively, a healthy neighborhood, stable home values, and office workers with whom to do business.

The plaintiffs also rely on Rochester v. United States Postal Service, 541 F.2d 967 (2d Cir.1976), to support their claim that a preliminary injunction should issue. However, they fail to note that while the Second Circuit did indeed reverse the district court's dismissal of the city's suit, it nevertheless declined to enjoin construction of the mail facility being challenged. The court only ordered that a new EIS be prepared to account for the...