Project BASIC v. Kemp, Civ. A. No. 89-0248 P.

• Decision Date: 17 July 1989
• Docket Number: Civ. A. No. 89-0248 P.
• Citation: 721 F. Supp. 1501
• Parties: PROJECT B.A.S.I.C. v. Jack F. KEMP, in his capacity as Secretary of the United States Department of Housing and Urban Development; the United States Department of Housing and Urban Development; Stephen J. O'Rourke, in his official capacity as Executive Director of the Housing Authority of the City of Providence; the Housing Authority of the City of Providence; the City of Providence; and the Providence Community Action Program, Inc.
• Court: U.S. District Court — District of Rhode Island

721 F. Supp. 1501

PROJECT B.A.S.I.C. v. Jack F. KEMP, in his capacity as Secretary of the United States Department of Housing and Urban Development; the United States Department of Housing and Urban Development; Stephen J. O'Rourke, in his official capacity as Executive Director of the Housing Authority of the City of Providence; the Housing Authority of the City of Providence; the City of Providence; and the Providence Community Action Program, Inc.

Civ. A. No. 89-0248 P.

United States District Court, D. Rhode Island.

July 17, 1989.

COPYRIGHT MATERIAL OMITTED

Steven Fischbach, R.I. Legal Services, Inc., Providence, R.I., John Dineen, R.I. Legal Services, Inc., Woonsocket, R.I., for plaintiff.

Mona Butler, U.S. Dept. of Justice, Washington, D.C., Ellen Dole, U.S. Dept. of HUD, Boston, Mass., Suzanne Curt, Asst. U.S. Atty., Providence, R.I., for Kemp & U.S. Dept. of Housing & Urban Development.

Stephen J. Reid, Jr., Providence, R.I., for O'Rourke and Housing Authority City of Providence.

Edward Clifton, City Sol. City of Providence, Robert J. Cosentino, Providence, R.I., for City of Providence and Providence Community Action.

OPINION AND ORDER

PETTINE, Senior District Judge.

The Providence Housing Authority (hereinafter, "PHA"), a defendant in this action, operates the Hartford Park housing project, consisting of 748 apartments in the City of Providence. The plaintiff, Project B.A.S.I.C., is an unincorporated association of tenants and housing advocates in the City of Providence, including low-income and minority persons who are themselves residents of the Hartford Park housing project. The defendants are: the United States Department of Housing and Urban Development (hereinafter, "HUD") and Jack F. Kemp in his capacity as Secretary of HUD (together, "the federal defendants"); the Housing Authority of the City of Providence (hereinafter, "the PHA") and Stephen J. O'Rourke in his capacity as the Executive Director of the PHA (together, "the PHA defendants"); the City of Providence; and the Providence Community Action Program. In the instant action, plaintiff challenges the proposed demolition of three high-rise apartment towers at Hartford Park which together contain 240 units and the proposed construction of replacement housing on "scattered sites" in the City of Providence, as violative of the United States Housing Act, the federal Fair Housing Act and the National Environmental Policy Act. Plaintiff also challenges the decision changing the site of a shelter for the homeless from the Elmwood area of Providence to Hartford Park as violative of the federal Fair Housing Act. Plaintiff filed a motion for a temporary restraining order and preliminary injunction of the demolition on April 20, 1989. Plaintiff has alleged an organizational injury, causation and redressability in this action sufficient to find that it has standing. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982); Project Basic Tenants Union v. Rhode Island Housing and Mortgage Finance Corp., 636 F.Supp. 1453 (D.R.I.1986) (analysis of constitutional standing of unincorporated association).

This Court granted a temporary restraining order on April 21, 1989, prohibiting defendants from taking any further steps to demolish the three high-rise buildings slated for demolition. This order was subsequently modified by an order allowing defendant Providence Housing Authority to demolish the high-rise building at 375 Hartford Avenue, after a hearing at which the defendants presented an expert witness who testified that the building had been structurally damaged by preparation for demolition and was not safe.¹ The demolition preparation work had not progressed as far on the other two towers, 12 Bodell Avenue and 22 Whelan Road, and no party alleges that these two buildings are now structurally unsound.

The federal defendants have moved this Court to dismiss the action for lack of subject matter jurisdiction, under Fed.R. Civ.P. 12(b)(1), and for failure to state a claim upon which relief can be granted, under Rule 12(b)(6). In the alternative, the federal defendants moved for summary judgment. The PHA defendants joined these motions. Because I find that this Court does have jurisdiction over the subject matter, pursuant to 28 U.S.C. Section 1331, and that plaintiff has stated a cognizable claim, the motion to dismiss is denied. I will therefore consider only defendants' alternative motion for summary judgment.

At a hearing held on June 6, 1989, the parties agreed to submit memoranda addressing the merits of the issues presented and agreed that Plaintiff's Motion for Preliminary Injunction and Defendants' Motion to Dismiss or Alternatively for Summary Judgment would be consolidated for decision. This Opinion should be understood as disposing of all pending motions in this action, except as to the siting of the shelter for the homeless, which is expressly reserved for later decision.

FACTS

The defendant PHA applied to HUD for federal funds through the Comprehensive Improvement Assistance Program (hereinafter "CIAP") to modernize the housing units at Hartford Park, including the 240 at issue here, and Manton Heights, another housing project operated by the PHA. It filed a Preliminary Application on March 20, 1987. The cover letter from the PHA's Executive Director noted that "the enclosed application is based on the assumption that the proposed comprehensive modernization of each project will assure each project's long-term viability. The Authority expects to subsequently amend this preliminary application to propose demolition of portions of Hartford Park as an alternative to modernization if it is determined that modernization will not assure its long-term viability."

The following month, the PHA submitted to HUD an application for the development of 360 units of public housing.² This request was predicated on the PHA's plan to demolish all four high-rises, containing a total of 360 units, at Hartford Park: 375 Hartford Avenue (60 apartments), 12 Bodell Avenue (90 apartments), 22 Whelan Road (90 apartments) and 10 Whelan Road (120 apartments). The application included a "Statement of Intent to Make Application for the Demolition of Public Housing Units," specifically the four high-rise structures, as an alternative to their rehabilitation if it was determined that they would not be viable even if rehabilitated. The Authority reported that it had contracted with a private consultant, the McHenry Co., Inc., for a physical needs assessment which would analyze the viability of all PHA projects in need of modernization and estimate the cost of comprehensive modernization and demolition at Hartford Park. In the "Statement of Intent," the PHA evaluated the viability of the buildings according to the criteria of the Code of Federal Regulations (hereinafter, "C.F.R."). It was clear from this evaluation that the PHA had already decided that the high-rises were not viable. The PHA stated that, pursuant to 24 C.F.R. 970.6(a) and (b), the four high-rise buildings were obsolete and no reasonable program of modifications was feasible to return these buildings to useful life. In addition, the PHA stated that "the demolition of only parts of Hartford Park will help assure the useful life of the remaining portions of the project (e.g. it will reduce project density)," parroting the words of 24 C.F.R. 970.6(c).

On June 11, 1987, the PHA submitted a revised CIAP Fiscal Year 1987 Preliminary Application, still requesting funds for the modernization of all housing units at Manton Heights and Hartford Park, including the four high-rise buildings, and again noting that the application was based on the assumption that the proposed comprehensive modernization of each project would assure each project's long-term viability. In the attached letter, the PHA stated that it would withdraw the request for funds for modernization of the Hartford Park high-rises not if it was determined that modernization would not assure the project's long-term viability (the condition stated in the previous application) but rather "if the Authority's development application is approved." Attached to the application was a Project Viability Test, in which the PHA noted certain problems as to physical condition and unspecified "other factors", but recited that these problems would be solved by modernization; for example, the PHA checked "YES" as the answer to the statement: "After proposed modernization, the project will be suitable for operation as public housing in accordance with program standards for a period of at least 20 years."

Contrary to these assertions that modernization would restore the viability of the high-rises was the resolution passed eight days earlier by the PHA Board of Commissioners. In Resolution 3649, the Board adopted the plan to demolish three of the high rises and rehabilitate 10 Whelan Road. It was this demolition plan which was pursued.

The PHA submitted its final Application for Major Reconstruction of Hartford Park on August 20, 1987. The PHA therein sought a total of $16,647,596 for the modernization, including $2,079,000 for the demolition of three high-rise buildings.

The HUD Field Office in Providence recommended approval of the application, despite the Field Office's finding that the PHA had minimal management capability and minimal modernization capability. In a one-page analysis of the factors contributing to project obsolescence, the Field Office set forth a short history of Hartford Park, commenting that these three high-rises contain 240 units, each unit having two floors and an interior stairway. The buildings were originally designed for family occupancy, but proved inappropriate for family use; the PHA began in 1971 to use them for elderly housing. However, as maintenance and security at Hartford Park deteriorated, the high-rises began to experience significant vacancy rates. In 1982, HUD granted the PHA's...