Silva v. East Providence Housing Authority

• Citation: 423 F. Supp. 453
• Decision Date: 05 November 1976
• Docket Number: Civ. A. No. 5383.
• Parties: Jeannette SILVA et al. v. EAST PROVIDENCE HOUSING AUTHORITY et al.
• Court: U.S. District Court — District of Rhode Island

423 F. Supp. 453

Jeannette SILVA et al. v. EAST PROVIDENCE HOUSING AUTHORITY et al.

Civ. A. No. 5383.

United States District Court, D. Rhode Island.

November 5, 1976.

COPYRIGHT MATERIAL OMITTED

Joseph Dugan, R.I. Legal Services, Providence, R.I., for plaintiffs.

Bradley L. Steere, Chepachet, R.I., for defendant East Providence Housing Authority.

Joseph T. Little, E. Providence, R.I., for defendant City of East Providence.

Barrie L. Goldstein, Washington, D.C., for defendant HUD, U.S. Dept. of Justice.

Constance L. Messore, Providence, R.I., for defendant HUD, Asst. U.S. Atty., for defendants.

OPINION

PETTINE, Chief Judge.

In this case, plaintiffs, a certified class under Rule 23(b)(2), Fed.R.Civ.P., see Silva v. East Providence Housing Authority (D.R.I. April 11, 1974) unreported opinion, representing eligible prospective tenants of low-income housing in the City of East Providence, seek declaratory and injunctive relief against the Secretary of Housing and Urban Development, the Department of Housing and Urban Affairs, and the United States Housing Authority hereinafter HUD; against the East Providence Housing Authority and its commissioners, individually and in their official capacity hereinafter EPHA; and against the City of East Providence hereinafter City. Basically, plaintiffs seek to re-institute Project R.I. 7-6, a plan, now terminated, under which EPHA was to build 70 units of scattered-site low income family housing. Steps were taken by HUD to terminate R.I. 7-6 beginning November 1, 1973, on the basis of HUD's judgment that EPHA's delay in beginning work on the project constituted a substantial breach of the agreement between HUD and EPHA under which the project was to go forward.

This Court has previously determined that it has jurisdiction of this matter and that plaintiffs have standing to bring this action. Silva v. East Providence Housing Authority, 390 F.Supp. 691 (D.R.I.1975). HUD has been enjoined pendente lite to keep intact the monies allocated for Project R.I. 7-6.

The case is now before the Court on cross motions for summary judgment by all parties.

The following chronology of events leading to the instant lawsuit is based on facts agreed to by all parties.¹ Further material facts appear in the Court's legal analysis infra.

Beginning in July 1969, EPHA began negotiations with HUD to build 100 units of low income family housing in the City of East Providence. In September of that year the City, to meet HUD requirements, signed a Cooperation Agreement with EPHA by which it obligated itself to cooperate in the completion of the 100 units. In December of 1969, EPHA received a $40,000 loan from HUD to begin planning, and by February of 1970 EPHA was able to submit a development program to HUD. An Annual Contributions Contract hereinafter sometimes ACC was signed by EPHA and HUD on May 11, 1970. This contract contained arrangements whereby the project, known as R.I. No. 7-5, was to be financed, with HUD making annual contributions to make up any deficits the project might incur over a forty year period. By July of 1970, EPHA had located 15 sites on which to build 30 of the 100 proposed units; these were approved by HUD and construction began in late 1970. They were completed in late 1971 and are now occupied by eligible low-income families.

In February 1971, EPHA submitted a development program for the remaining 70 units to be build on 35 scattered sites. This project was severed from the remainder of the now completed R.I. No. 7-5 and was denominated R.I. No. 7-6 in an amended ACC.

The course of R.I. No. 7-6 has not run smoothly and these units remain unbuilt. The explanation for this lies, at least in part, in the political opposition to low-income family housing that arose in East Providence in the spring of 1970 and has continued apace. Evidence of this opposition may be found in the City Council's Resolution No. 10, April 5, 1971, ordering EPHA to cease planning work on R.I. 7-6. This was followed by EPHA Resolution No. 99, on April 16, 1971, stating that EPHA would not proceed with R.I. No. 7-6, but would request that HUD approve a Turnkey III home ownership project instead.

After these resolutions were passed, there appears to have been no further activity on R.I. No. 7-6 by EPHA, HUD or the City for the remainder of 1971. However, in January 1972, representatives of the parties met and agreed that EPHA would submit to HUD a detailed proposal for R.I. 7-6. Subsequent to this meeting, EPHA passed Resolution No. 103, March 13, 1972, rescinding Resolution No. 99 and re-committing itself to the completion of R.I. 7-6.² A detailed proposal with an estimated cost of approximately $1.65 million was submitted to HUD in May and by December 1972 EPHA had located, and HUD approved, 30 tentative construction sites of the 35 necessary, for the 70 units to be built.

In 1973, City Council opposition to R.I. 7-6 was renewed. On February 28, 1973, the City Council passed a second Resolution No. 10, "requesting" EPHA to stop the project. In April 1973, EPHA sought HUD's advice as to the legal effect of the City's action. No reply was received until June 1973, when HUD advised that the City Council's resolution was illegal in its opinion. At this time, the City seems to have adopted informally the position that if HUD insisted on R.I. 7-6 it would not resist. (See City's Statement of Material Facts Not In Dispute, Par. 19). HUD continued to insist on a timetable for completion of R.I. 7-6 and in August 1973 began to threaten termination unless EPHA proved more responsive to HUD's requests. Continued correspondence between HUD and EPHA culminated in a meeting on October 28, 1973, at which it appears to have been clear that the real stumbling block to progress on R.I. 7-6 was EPHA's inability to acquire suitable construction sites for the project. EPHA reported that it had been unable to purchase 25 of the 30 tentatively approved sites. The other five were owned by the City and EPHA anticipated that the City Council, scheduled to review the matter on November 6, 1973, might refuse to sell. HUD inquired if EPHA would employ its power of eminent domain to acquire the needed sites. EPHA stated that it would not, having determined that this procedure was costly and would involve litigation and delay. By October 30, however, EPHA was able to inform HUD by letter that it had found ten sites plus the five owned by the City. This letter apparently crossed a letter from HUD dated November 1, 1973, stating its decision to cancel the project "based on the review of the history of the project and the actions of EPHA during the October 18 meeting".

On November 6, 1973, EPHA wrote HUD expressing its view that what East Providence really needed was housing for the elderly and seeking to reinstate R.I. 7-6 for that purpose. This request was denied.

In late 1973, the Complaint was filed in this case and plaintiffs' attorneys simultaneously began their attempts to persuade HUD to reinstate R.I. 7-6. Plaintiffs' attorneys were unsuccessful. In addition, in June 1974, they asked that HUD conduct an environmental impact study before finally terminating R.I. 7-6. HUD replied with a letter detailing its reasons why such a study was not necessary.

I. Claims Against HUD

A. NEPA Claims

Plaintiffs first ask the Court to set aside HUD's decision to terminate R.I. 7-6, alleging that HUD failed adequately to consider the human environmental consequences of its decision either by preparing an Environmental Impact Statement or by stating reasons why consideration of environmental impact was not required. Plaintiffs contend that this failure violated the National Environmental Policy Act of 1970, in particular the provisions of 42 U.S.C. § 4332 (1970), and HUD's own regulations, 24 C.F.R. § 58.1 et seq. (1976).³

HUD has adopted the position that because the termination decision merely restored the status quo ante, there was no "major Federal actions significantly affecting the quality of the human environment," 42 U.S.C. § 4332(C) (1970), and therefore NEPA requirements were not applicable. After a thorough survey of the cases, the Court agrees. In dealing with the question of when NEPA requires either an EIS or a statement of reasons why an EIS is unnecessary, the courts have operated under the assumption that such statements become mandatory only when there is a "major federal action" and when some affirmative decision to go forward has been made, see, e. g., Nucleus of Chicago Homeowners Ass'n v. Lynn, 524 F.2d 225, 230 (7th Cir. 1975); Rhode Island Committee on Energy v. General Services Administration, 397 F.Supp. 41, 61 (D.R.I.1975); or when an existing government project is about to be terminated, see, e. g., Cole v. Lynn, 389 F.Supp. 99, 104-05 (D.D.C.1975).⁴

There may be governmental actions that fall into neither of these categories but nevertheless come under the aegis of NEPA. The present case, however, does not present such a situation. In terms of the applicability of NEPA, HUD's decision to cancel R.I. 7-6 is no different from an initial rejection of the proposal, for lack of funds, failure to meet eligibility requirements, or any other valid reason. It cannot be seriously maintained that HUD could make such decisions only after following the NEPA procedures, and NEPA is no more demanding with respect to the termination decision at issue here.

This Court will continue to insist that the requirements of NEPA be vigorously enforced where applicable, see Rhode Island Committee on Energy v. General Services Administration, supra. However, the Court cannot extend the requirements of NEPA to a termination decision of a project which has not come into being and which will have no effect on the existing environment.

Plaintiffs also argue that HUD's own regulations, 24 C.F.R. § 58.1 et seq. (1976) require that the R.I. 7-6 termination decision be channeled through the agency's environmental clearance...