Morgan v. United States Postal Service

• Decision Date: 17 December 1975
• Docket Number: No. 75 CV 102-W-1.,75 CV 102-W-1.
• Citation: 405 F. Supp. 413
• Parties: Terry MORGAN, Plaintiff, v. UNITED STATES POSTAL SERVICE et al., Defendants.
• Court: U.S. District Court — Western District of Missouri

405 F. Supp. 413

Terry MORGAN, Plaintiff, v. UNITED STATES POSTAL SERVICE et al., Defendants.

No. 75 CV 102-W-1.

United States District Court, W. D. Missouri, W. D.

December 17, 1975.

William H. Pickett, Kansas City, Mo., for plaintiff.

Bert C. Hurn, U. S. Atty., David M. Proctor, Asst. U. S. Atty., Kansas City, Mo., for defendants.

MEMORANDUM AND ORDER

JOHN W. OLIVER, District Judge.

This case raises the question of whether an environmental impact statement (EIS) is required under the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq. (1970), for a proposed expansion of the parking facilities at the Westport station of the United States Postal Service in Kansas City, Missouri. The action currently pends on plaintiff's motion for a preliminary injunction which will be granted. The following opinion shall constitute our specific findings and conclusions as required by Rules 52 and 65, Fed.R.Civ.P.

I. BACKGROUND OF CASE

The present action was commenced on February 7, 1975 by the filing of a complaint alleging that the proposed expansion of the parking facilities at the Westport Postal Station constitutes "major federal action significantly affecting the quality of the human environment," within the meaning of Section 102(2) (C) of NEPA, 42 U.S.C. § 4332(2) (C). Jurisdiction is predicated on the Administrative Procedure Act, 5 U.S.C. §§ 701-06, and 28 U.S.C. § 1361. Jurisdiction is also present under 28 U. S.C. § 1331 and 39 U.S.C. § 409.

Plaintiff, a resident of the Wyandotte-Central Streets neighborhood in which the proposed parking facility is to be located,¹ contends, among other things, that the razing of seven residential structures in order to construct the parking facility will alter the residential character of the neighborhood and contribute to the population decline and housing shortage in the Westport Area of the central city. The plaintiff further alleges that "the project violates both the redevelopment and neighborhood preservation objectives of the Westport Plan," a comprehensive land use proposal for the Westport area. Plaintiff also alleges that the environmental impact assessment (EIA) prepared by defendant pursuant to 39 C.F. R. § 775.14(b) (1975) is inadequate in that it fails to adequately assess such significant environmental factors as the increased vehicular emissions and noise in the area, the potential overloading of storm sewer capacity due to increased water run-off from the paved parking facility, the alteration of land use patterns and the historical character² of the entire Westport area. Plaintiff seeks declaratory and injunctive relief to prevent any demolition of existing structures in the Wyandotte-Central Street neighborhood until an adequate EIS has been prepared.

On June 17, 1975 Chief Judge Becker entered a Temporary Restraining Order to prevent the destruction of seven residences adjacent to the Westport Postal Station. No further action was taken by the Postal Service and on August 1, 1975, this Court held an evidentiary hearing on plaintiff's motion for a preliminary injunction. At that hearing the Postal Service agreed to prepare a new EIA which would take into account and adequately assess the environmental factors mentioned by plaintiff. The Postal Service further agreed to reconsider its decision not to file an EIS in light of the new EIA.

The new EIA was filed on August 28, 1975. A minor revision of the new EIA was filed on September 19, 1975. On October 8, 1975 the Postal Service filed a statement declaring that it has "no present intention to process and promulgate an environmental impact statement relating to the subject matter of this case."

II. FINDINGS OF FACT

The factual circumstances surrounding the proposed expansion of the parking facility at the Westport Postal Station are virtually undisputed. The documentary evidence reveals that on February 1, 1973, defendant Theodoric Bland, manager of the Kansas City Postal District, requested authorization from the Regional Office to enlarge the parking area adjacent to the Westport Station in order to accommodate more delivery vehicles Ex. 1. Prior to this time the Postal Service had leased the Westport Station, but on August 21, 1973, fee simple title was conveyed to the Postal Service Stip. ¶ 2(2). Thereafter, on August 17, 1973, Mr. Bland submitted a cost-benefit analysis on the proposed motorization of the Westport Station Ex. 9. After receiving this further data, the Regional Director of the Engineering Division authorized acquisition of approximately 28,320 square feet adjacent to the Westport Station for development of a parking lot Ex. 4. Following acquisition approval, the Postal Service in January, 1974, prepared an Environmental Appraisal Checklist on the proposed project, and concluded that "it does not appear that the utilization of this site for parking of postal vehicles and postal employees will have a significant impact on the environment." Ex. 7

Acquisition of the property for the proposed parking facility commenced in April, 1974. A total of seven lots and residences were acquired by the Postal Service Stip. ¶ 2(3). At the time of acquisition, all of the residences were, with the exception of the residence at 3945 Central, either owner occupied or tenant occupied Stip. ¶ 2(4).

During the period of acquisition the Postal Service received inquiries from the City Manager's office and from an attorney representing persons in the residential neighborhood around the proposed project Ex. 10, 11. The latter inquiry requested information on the type of parking facility to be constructed, and its effect upon the human environment of those persons living nearby Ex. 12. The manager of the Real Estate Branch of the Kansas City Postal District responded to the attorney's letter by describing the project as a surface parking facility rather than a parking structure, and stated that the expanded facility would accommodate 15 additional arrivals and departures daily Ex. 14. No other information was provided in regard to the possible environmental impact of the proposed project, but shortly thereafter, on September 10, 1974, the manager of the Design and Construction Branch of the Kansas City Postal District requested an environmental impact assessment Ex. 16. At this point all the land had been acquired for the proposed parking facility.³

An environmental impact assessment (EIA) was prepared by an independent consulting firm and received by the Design and Construction Branch on November 21, 1974. That assessment contained a cursory discussion of several environmental factors and concluded that:

The construction of this facility will not have a significant adverse effect on the environment and the landscaping and maintenance will have a beneficial effect.

The construction of this facility will not be environmentally controversial; therefore, an environmental impact statement will not be prepared.⁴

During the time the EIA was being prepared, plaintiff sent a letter to Mr. Bland, the Kansas City Postal District Manager, inquiring about the project. He was informed that an environmental assessment was being prepared and that the Postal Service would determine whether an environmental impact statement was required based upon the findings in the assessment Ex. 21. Shortly after the assessment was received by the Service, a negative declaration under 39 C.F.R. § 775.5 (1975) was made which stated that "the proposed use of the subject land will not have a significant adverse impact on the environment" and that no environmental impact statement would be prepared. Ex. 23. Subsequently, the Environmental Protection Agency EPA, after a review under Section 309 of the Clean Air Act, 42 U.S.C. § 1857h-7 (Supp.1975), also determined that the proposed expansion of the parking facility would "not result in an unsatisfactory action from the point of public health, welfare or environmental quality."⁵

At this point the Postal Service had apparently resolved the environmental problems associated with the project to its satisfaction. However, the Postal Service then encountered other problems with Kansas City Zoning Ordinances. On January 13, 1975, the Service applied for an auxiliary use permit for employee parking on the proposed parking facility Stip. ¶ 2(7). This application was denied, but on appeal the City Board of Zoning Adjustment granted the Postal Service a permit. Thereafter, a petition for writ of certiorari was filed in the Circuit Court of Jackson County, and on March 24, 1975 a Temporary Restraining Order was issued preventing the City from issuing any permits to approve any further expansion of the parking facility at the Westport Postal Station Stip. ¶ 2(9, 10).

Undaunted by the injunction, the Postal Service proceeded to issue an Invitation to Bid on the design and construction of the parking facility expansion Ex. 27. On May 30, 1975, the manager of the District Design and Construction Branch notified the winning contractor that his bid had been accepted, and shortly thereafter sent him a notice to proceed Ex. 28, 29. Any demolition or construction work was prevented by Chief Judge Becker's Temporary Restraining Order issued on June 17, 1975.

At the hearing on the preliminary injunction held on August 1, 1975, the Postal Service agreed to have a new environmental impact assessment prepared and to reconsider its decision not to file an EIS. It was also agreed that any razing of the structures adjacent to the Westport Station would be suspended until the Postal Service had reached a new decision and the plaintiff's motion for preliminary injunction had been ruled. After the hearing, the Postal Service contacted Midwest Research Institute here in Kansas City, and requested that they prepare a new environmental assessment. That assessment was completed on August 22 and was filed in revised form on September 19, 1975.

The new assessment contains a discussion of eleven...