Project BASIC v. Kemp
| Decision Date | 02 April 1991 |
| Docket Number | Civ. A. No. 89-0248 P. |
| Citation | 776 F. Supp. 637 |
| Parties | PROJECT B.A.S.I.C., Plaintiff, v. Jack KEMP, Secretary of Housing and Urban Development, et al., Defendants. |
| Court | U.S. District Court — District of Rhode Island |
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Steven Fischbach and Judith Kaye, Rhode Island Legal Services, Providence, R.I., for plaintiffs.
Robert B. Mann, Mann & Mitchell, Providence, R.I., for plaintiffs Phoenix Griffin Group II, Ltd., LTG Const. Co. and Lloyd T. Griffin.
Everett Sammartino, Asst. U.S. Atty. U.S. Attorney's Office, Providence, R.I., Peter Kimm, Jr., and David J.P. Gross, U.S. Dept. of Justice, Civ. Div., Washington, D.C., for defendants HUD and Kemp.
Stephen J. Reid, Jr., Blish & Cavanagh Providence, R.I., for defendant Stephen O'Rourke, Housing Authority for City of Providence.
Kevin McHugh, Office of the City Sol., City of Providence, Providence, R.I., for defendant City of Providence.
Robert J. Cosentino, Providence, R.I., for defendant Providence Community Action Program (PRO-CAP).
This suit was filed by the plaintiff, Project B.A.S.I.C., a tenants organization, challenging the demolition of the Hartford Park Housing Project, the plan for scattered-site replacement housing and the location of a homeless shelter. In an earlier decision, this Court denied plaintiff's motion to enjoin the demolition and established a timetable for the completion of the replacement housing. Project B.A.S.I.C. v. Kemp, 721 F.Supp. 1501 (D.R.I.1989).1 The issues remaining in the case are plaintiff's challenge to the location of the scattered site housing and the issues surrounding the homeless shelter.
The federal defendants, Secretary Jack Kemp and the Department of Housing and Urban Development (collectively, "HUD"), and the local defendants, Steven J. O'Rourke, Director of the Housing Authority of the City of Providence, and the Housing Authority itself (collectively, "PHA"), have each moved for summary judgment. HUD's motion addresses the only issue involving HUD: its liability under the Fair Housing Act (or "Title VIII"), 42 U.S.C. § 3608, for its conduct in approving the location of the scattered site housing, reviewable under the Administrative Procedure Act, 5 U.S.C. § 701 et seq. ("APA"). PHA moves for partial summary judgment on the issue of its role in the siting of the replacement housing under the Fair Housing Act, 42 U.S.C. § 3601 et seq., Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., and the equal protection and due process clauses of the fourteenth amendment.
On a motion for summary judgment, Fed.R.Civ.P. 56 requires "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Hebert v. Mohawk Rubber Co., 872 F.2d 1104, 1106 (1st Cir.1989). When a party moves for summary judgment, it must "put the ball in play, averring `an absence of evidence to support the nonmoving party's case.'" Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986)). Once the movant has done so, the burden shifts to the nonmoving party to "establish the existence of at least one fact issue which is both `genuine' and `material.'" Id. A court must construe all factual inferences in the nonmoving party's favor. Voccio v. General Signal Corp., 732 F.Supp. 292, 294 (D.R.I.1990). On the basis of this standard and the foregoing reasons, the defendants' motions for summary judgment are denied.
The facts relating to the demolition of the high-rises at Hartford Park are set out in Project B.A.S.I.C., 721 F.Supp. 1501, and I will not repeat them here except to say that it was the demolition of the subsidized housing there that led to the need for the 240 units of replacement housing now at issue. Constructing the replacement housing is a joint effort by HUD and PHA. For this project, HUD approved PHA's use of the "turnkey" method. Under the turnkey method, PHA advertises for and selects developers who submit proposals for sites owned by or to be purchased by the developer. 24 C.F.R. § 941.102(b). PHA then submits the sites for preliminary review to the HUD field office. Id. If HUD determines that the proposed sites comply with applicable standards, the developer prepares design and construction documents which both the PHA and the HUD field office review and approve. Following such approval, PHA and HUD enter into a contract under which HUD provides financial assistance to the PHA and the PHA promises to comply with HUD requirements relating to the development and operation of the project. The developer and PHA enter into a contract of sale which is approved by the HUD field office. Upon completion of the project, PHA purchases the project.
The PHA received funds from HUD in two separate allocations, in September 1987 and September 1988. In April 1989, PHA began to submit specific sites for HUD review. HUD's review is governed by various statutory provisions, including the Fair Housing Act, as well as HUD's own regulations and guidelines. The basic criteria for the review is set forth in HUD's Site and Neighborhood Standards, 24 C.F.R. § 941.202. The requirements include adequate access to utilities and service streets; access to schools, recreational and health facilities and job opportunities, and a lack of adverse environmental conditions. Id. Most significant for our purposes is that the regulations also provide that sites for new construction must not be located in an area of minority concentration unless 1) sufficient, comparable opportunities exist for housing for minority families, in the range to be served by the proposed project, outside areas of minority concentration or 2) the project is necessary to meet overriding housing needs. Id. New construction also may not be located in a racially mixed area if the project will cause a significant increase in the proportion of minority to non-minority residents in the area and must avoid undue concentration of assisted persons in areas containing a high proportion of low income persons. Id. Moreover, HUD is constrained by 42 U.S.C. § 1436b which mandates that sites not be excluded from consideration "solely because the site proposed is located within a minority impacted area."
After PHA began submitting specific sites, HUD decided that under their regulations it would be permissible for PHA to site up to half of the replacement units in areas of minority concentration. HUD defined "areas of minority concentration" as census tracts in Providence with minority populations greater than 21.5% according to the 1980 census.2
As of February 1, 1991, the status of the 240 units was as follows:
1. 131 Units: HUD has given final approval and entered into contracts with the PHA. Of these 131 units, 71 are complete and under PHA ownership (including 67 that are already occupied); the remaining units are in various stages of construction.
2. 89 Units: HUD has given initial site approval, but the developer packages have not yet been approved. For 23 of these units, HUD is currently reviewing developer packages.
3. 20 Units: No sites have been selected.
Of the 220 units for which HUD already has provided either final approval or initial review (categories 1 and 2 above), 119 units are located in non-minority concentrated areas (as defined by HUD); the remaining 101 units are located in areas of minority concentration.
HUD contends that its actions must be upheld, as a matter of law, unless shown to be "arbitrary and capricious" under the APA. 5 U.S.C. § 706. It argues that this Court's review must be limited solely to the administrative record and that summary judgment is the only proper vehicle for resolving this case. PHA relies primarily on HUD's brief and contends that if HUD's approval was proper PHA cannot be liable. Basically, PHA argues that it is shielded by HUD's review. Plaintiff, conceding that the APA is the proper vehicle for reviewing the claim against HUD, contends that a trial is necessary because there are genuine issues of material fact in dispute.
The APA standard of review is set forth in Section 706(2)(A), (C): "the reviewing court shall hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" or "in excess of statutory jurisdiction, authority, or limitations, or short of statutory right...."
HUD's contention with regard to the standard of review focuses primarily on the "arbitrary and capricious" aspect of Section 706 while neglecting the possibility of a direct statutory challenge under the APA. See Cousins v. Sec'y of U.S. Dep't of Transportation, 880 F.2d 603, 608 (1st Cir.1989) (en banc). HUD's emphasis on this particular aspect is not unusual.
Courts and litigants may typically refer to the first, "arbitrary, capricious" type of legal challenge, in a shorthand matter, as an "APA challenge," and they may refer to the question whether the regulations violate a substantive statute as a challenge under the statute itself. But technically this latter...
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